THE .LITT~RNEY GENE-L 

OF TEXAS 

Honorable A. L. Brantleg 

County Attorney 

Irlon County 

Mertzon, Texas 

Dear Mr. Brantley: Opinion NO. 0-6245 

Re: (1) Whether a County Judge can 

legally declare a vacancy in the 

County Commissioners' office where 

the Commissioner has been inducted 

into the United States Army, and appoint another Commissioner in his 

place; (2) If the new Commissioner 

has duly qualified, and if it is 

determined that the County Judge 

acted without authority, is the 

County Clerk acting legally by refusing to issue warrant of payment 

to said new Commissioner for his 

service, although said Clerk is 

directed by the Commissioners' Court 

to issued such warrant of payment? 

We are in receipt of your letter requesting the opinion of this department on the above-stated questions. Your 

letter, in part, reads as follows: 

"The question has been brought to my attention 

the matter as to whether a County Judge can legally 

declare a vacancy in the county commissioners office 

where the commissioner has been inducted into the 

U. S. Army, and appoint another commissioner Ln his 

place. 

"Further, if the new commissioner has duly 

qualified, and if you find that the County Judge 

acted without authority, 1s the County Clerk acting 

legally by refusing to issue warrant of pa,yment to 

said new commissioner for his service, though said 

Clerk is directed by the Commissioners' Court to 

issue such warrant of payment? 

"The old commissloner who is now in the service refuses to resign his position according to a 

letter in the hands of the County Treasurer. 
Honorable A. L. BrantIey, :page .2 Q-6245 

We are also in r,eceipt of your later letter, accompanied by a brief of the matters Involved, for which we thank 

you. 

Article V, Section 24, of the Constitution, is as 

follows: 

"County Judges, county attorneys, clerks of 

the District and County Courts, justices of the 

peace, constables, and other county officers, 

may be removed by the Judges of the District Courts 

for incompetency, official misconduct, habitual 

drunkenness, or other causes defined by law, upon 

the cause therefor being set forth in writing and 

the finding of Its truth by a jury. 

Article XVI, Section 14, of the Constitution, Is as 

follows: 

'All civil officers shall reside within the 

State; and all district or county officers within their districts or counties, and shall keep 

their offices at such places as may be required 

by law; and failure to comply with this condition 

shall vacate the office so held." 

The pertinent statutes are as follows: 

"All district and county attorneys, county 

judges, commissioners, clerks of the district and 

county courts and single clerks in counties where 

one clerk discharges the duties of dlstrict and 

county clerk, county treasurer, sheriff, county 

surveyor, assessor, collector, constable, cattle 

and hide inspector, justice of the peace and all 

county officers now or hereafter existing by authorlty either of the Constitution or laws, may 

be removed from office by the judge of the district 

court for incompetency, official misconduct or becoming intoxicated by drinking intoxicating liquor, 

as a beverage, whether on duty or not; provided 

such officer shall not be removed for becoming 

Intoxicated when it appearsupon the trial of such 

officer that such intoxication was produced by 

drinking intoxicating liquors upon the direction 

and prescrlptlon of a duly licensed practicing physician of this State." -- Article 5970, Vernon's 

Annotated Civil Statutes. 

"In case of vacancy in the office of commis- 
Honorable A. L. Brantley, page 3 O-6245 

sioner, the county judge shall appoint some suitable personliving in the precinct where such vacancy occurs, to serve as commissioner for such 

precinct until the next general election." --Article 2341, Vernon's Annotated Civil Statutes. 

Hamilton v. King, 206 S.W. 953, is decisive of the 

controlling point in the matters under consideration. It is 

there held: 

"After very careful investigation, we have 

been unable to find any statute of this state or 

provision of the Constitution which declares that 

an absence from the county of one of its officials, 

who shall be engaged as a private soldier in the 

Army of the United States, shall create a vacancy 

in the office of such official; and, in the absence of any such provision, we are of the oplnlon 

that the commissioners' court in this instance 

had no authority to declare the office of county 

attorney vacant, and to appoints appellee thereto, 

but that, In the absence of such provision, the 

authority to determine and declare such question 

was'vested in the district court of Sabine county." 

Neither the Commissioners' Court nor the County Judge 

has the power -- jurisdiction -- to declare a vacancy in the 

office of County Commissioner. 

with the power only to appoint a 

The County Judge is clothed 

Commissioner 'In case of 

vacancy in the office", 

--- 

which vacancy, however, must actually exist. 

NOW, the act of the County Judge, in attempting'to 

appoint a Commissioner where no vacancy in the office existed, 

is not authorized by any law, and his attempt to do so Is 

therefore utterly void of any effect whatever. It create3 

no right, and confers no authority or power whatsoever on the 

attempted appointee, and imposes no duty whatever on any officer of the county concerned with the finances of such 

county. The situation is precisely the same as though the 

attempted appointment by the County Judge had never been made. 

It is well settled that salary for compensation of 

an offlcer is incident to the office, and not dependent upon 

services actually performed by such officer. It is obviously 

true that compensation should in no event be paid to two 

County Commissioners for the same time, for the same precinct. 

Not only the policy of the State, but the statutory 

law itself has been made plain by the recent enactment of the 
. 

Honorable A. L. Brantleg, page 4 o-6245 

Legislature, (Acts, 48th Leg. p. 381) suspending Articles 

7045 and 2354 of the Revised Civil Statutes (1925) until 

May 1, 1945, and including the proviso that: '* * + provided, 

however, that If any member or members of the Commissioners' 

Court or the County Judge is in active milFtary or naval 

service, county taxes may be levied at any regular term of 

the Commissioners' Court when a quorum of its members are 

present. This Section shall be effectfve until the date set 

out -in Section 1 of this bill." 

In Cramer v. Sheppard, 167 3.W. (2) 147, our Supreme 

Court has said: 

"To our minds it is Illogical to contend that 

the construction we have given these constitutional provisions would make it impossible for a county 

commissioners' court to fix tax rates, if a member 

thereof should be absent for the same reason Judge 

Dixon was absent because Article 7045 of our Civil 

Statutes requires all members of such courts to be 

present when county tax rates are fixed. Certainly a statute cannot override the Constitution. 

Where the Constitution permits a member to be absent, a statute cannot require him to be present. 

Itfollows that in such instance Article 7045, sum-a, cannot be applied as to the member absent by 

constitutional authority.' 

It would appear, therfore, that even in the absence 

of the act of suspension of 1943, nevertheless, the County 

Commissioner's absence being due to superior authority -- 

induction into the Army of the United States -- the holding 

of the courts in this respect would be the same as to the 

absent Commlssloner. 

Article 1928 of the Revised Civil Statutes of 1925 

declares as a condltlon of the County Judge's offlclal bond, 

among other things, "that he will not vote or give his consent to pay out county funds except for lawful purposes." 

From what we have satd it follows that your question 

No. 1 should be answered in the negative; that 1s to say, 

the County Judge had no authority, under the facts stated by 

you, to appoint a Commissloner, and that such act, together 

with all incidental acts of himself, the Commissloners' Court, 

the County Clerk,or any other county officer, is void. The 

County Clerk,therefore, was entlrelg within his authority, 

and it was his duty to refuse to Issue any warrant of payment 

to the appointee of the County Judge for his service. 
Honorable A. L. Brantleg, page 5 O-6245 

Our holding is supported by the following opinions 

heretofore rendered by this department, to-wit: Nos. Q-2533, 

0-3080, O-3295, o-4457 and o-3448. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By s/Ocie Speer 

Ocie Speer 

Assistant 

OS-MR-WC 

APPROVED NOV 13, 1944 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

This Opinion Considered And Approved In Limited Conference