THE .LITT~RNEY GENE-L
OF TEXAS

Honorable A. L. Brantleg CountyAttorney 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'officewhere the Commissionerhas been inducted into the United StatesArmy, 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 legallyby refusing to issuewarrant of payment to said new Commissioner for his service,although said Clerk is directed by the Commissioners'Court to issued suchwarrant of payment?

We are in receipt of your letter requesting the opinion of this department on the above-stated questions. Your letter, inpart, reads as follows:

"Thequestion 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 commissionerhas been inducted into the U. S. Army, and appoint another commissioner Ln his place.
"Further,if the new commissionerhas duly qualified, and if you find that the County Judge acted without authority, 1s the County Clerk acting legallyby refusing to issuewarrant of pa,yment to said new commissioner for his service, though said Clerk is directed by the Commissioners'Court to issue suchwarrant of payment?

"The old commisslonerwho 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,eceiptof your later letter,accompaniedby a brief of the matters Involved,for which we thank you.
ArticleV, Section 24, of the Constitution, is as follows:
"CountyJudges, county attorneys, clerks of theDistrict and County Courts, justicesof the peace, constables,and other county officers, may be removed by the Judges of theDistrict Courts for incompetency,officialmisconduct, habitual drunkenness, or other causes defined by law, upon the cause thereforbeing set forth inwriting and the finding of Its truth by a jury.

ArticleXVI, Section 14, of the Constitution, Is as follows:

'All civil officers shall reside within the State; and all district or county officerswithin their districts or counties,and shallkeep their offices at suchplaces as may be required by law; and failure to complywith this condition shall vacate the office so held."

The pertinent statutesare as follows:

"Alldistrict and county attorneys, county judges, commissioners,clerks of the district and county courts and single clerks in countieswhere
one clerk discharges the duties of dlstrict and county clerk, county treasurer, sheriff,county surveyor,assessor, collector, constable, cattle and hide inspector, justiceof the peace and all county officersnow or hereafter existingby authorlty either of the Constitution or laws, may be removed from office by the judge of the district court for incompetency,officialmisconduct or becoming intoxicatedby drinking intoxicatingliquor,
as a beverage,whether on duty or not; provided such officer shallnot be removed for becoming Intoxicatedwhen it appearsupon the trial of such officer that such intoxicationwas producedby drinking intoxicatingliquors upon the direction and prescrlptlon of a duly licensedpracticingphysician 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, isdecisive of the controllingpoint in the matters under consideration. It is there held:

"Aftervery careful investigation,we have been unable to find any statute of this state or provision of the Constitutionwhich declares that
an absence from the county of one of its officials, who shallbe 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 suchprovision,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 suchprovision, 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 aThe County Judge is clothed Commissioner 'Incase of vacancy in the office", --- which vacancy, however,must actually exist.

NOW, the act of the County Judge, in attempting'to appoint a Commissionerwhere no vacancy in the office existed, is not authorizedby any law, and his attempt to do so Is therefore utterly void of any effectwhatever. It create3
no right, and confers no authority or powerwhatsoever on the attempted appointee, and imposesno duty whatever on any officer of the county concernedwith the finances of such county. The situation is precisely the same as though the attempted appointmentby the County Judge had never been made.

It iswell 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 eventbe 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) suspendingArticles 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 taxesmay be levied at any regular term of the Commissioners'Courtwhen a quorum of itsmembers are present. This Section shallbe effectfveuntil the date set out -in

Section 1 of this bill."

In Cramerv. Sheppard, 167 3.W. (2) 147, our Supreme Court has said:

"To our minds it is Illogical to contend that the constructionwe have given these constitutional provisionswould make it impossiblefor a county commissioners' court to fix tax rates, if a member thereof shouldbe absent for the same reason Judge Dixon was absent becauseArticle 7045 of our Civil Statutes requires all members of such courts to be presentwhen county tax rates are fixed. Certainly a statute cannot override the Constitution. Where the Constitutionpermits a member to be absent, a statute cannot require him to be present. Itfollows that in such instanceArticle 7045, sum-a, cannot be applied as to the member absent by constitutionalauthority.'

It would appear, therfore, that even in the absence of the act of suspension of 1943, nevertheless, the County Commissioner'sabsence being due to superiorauthority -- 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 theRevised Civil Statutes of 1925 declares as a condltlon of the County Judge's offlclalbond, among other things, "thathe 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 shouldbe answered in the negative; that 1s to say, the County Judge had no authority, under the facts statedby you, to appoint a Commissloner,and that such act, together with all incidentalacts of himself, the Commissloners'Court, the County Clerk,or any other county officer, is void. The County Clerk,therefore,was entlrelgwithin his authority, and it was his duty to refuse to Issue any warrant of payment to the appointee of the CountyJudge for his service.Honorable A. L. Brantleg, page 5 O-6245

Our holding is supportedby the following opinions heretoforerendered 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

APPROVEDNOV 13, 1944 s/Grover Sellers ATTORNEY GENERAL OF TEXAS
This Opinion ConsideredAnd Approved In Limited Conference