OFriCE “1 THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

December 8, 1999 

The Honorable Pete P. Gallego 

Chair, General Investigating Committee 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. JC-015 1 

Re: Removal of a veterans county service officer 

who does not meet the requisite statutory 

qualifications (RQ-0076-K) 

Dear Representative Gallego: 

You have requested our opinion as to whether a person who does not meet the statutory 

requirement for the position may serve as a veterans county service officer in Pecos County, and if 

not, how the appointment of such an individual may be challenged. We conclude that a non-veteran’ 

is ineligible to serve as a veterans county service officer, that quo warrant0 is not a proper means of 

challenging the tenure of a non-qualified individual, but that other legal remedies may be available. 

A commissioners court in a county with a population of less than 200,000 may “maintain and 

operate” a veterans county service office under the terms of section 434.032(b) of the Government 

Code. Pecos County has a population of less than 200,000. When the office has been established, 

the commissioners court is directed to “appoint a veterans county service officer and the number of 

assistant veterans county service officers that it considers necessary.” TEX. GOV’T CODE ANN. 

$ 434.033(a) (Vernon 1998). Eligibility for the position is established by statute: 

(b) To be appointed as an officer a person must: 

(1) be qualified by education and training for the duties of the 

offke; 

(2) be experienced in the law, regulations, and rulings of the 

United States Department of Veterans Affairs controlling cases that 

come before the commission; and 

(3) have the service experience specified by Subsection(c) or 

be a widowed Gold Star Mother or umemarried widow of a 

serviceman or veteran whose death resulted from service. 

‘An appointee need not be a veteran if she is “a widowed Gold Star Mother OI unremanied widow of a 

serviceman or veteran whose death resulted from service.” See TEX. Gov’r CODE ANN. 5 434.033(b)(3) (Vernon 1998). 
The Honorable Pete P. Gallego - Page 2 (X-0151) 

(c) To meet the service experience requirement of Subsection 

(b)(3) a person must have: 

(1) served on active duty in a branch of the armed forces of 

the United States; 

(2) served for at least four months or have a service-connected 

disability; and 

(3) been honorably discharged. 

(d) An officer serves at the pleasure of the commissioners court. 

Id. 5 434.033. Thus, a person appointed on the basis of service experience must be an honorably 

discharged veteran of the armed forces with either four months service or a service-connected 

disability. 

You indicate that Pecos County has appointed to the position of veterans county service 

officer an individual who is not a veteran. In Attorney General Opinion V-269 (1947) this office, 

in construing the predecessor statute to section 434.033, said that a person who is not a veteran is not 

eligible for the position ofveterans county service officer. See also Tex. Att’y Gen. Op. No. O-6489 

(1945). Both the statute and Attorney General Opinion V-269 make it clear that a non-veteran is 

ineligible for appointment as a veterans county service officer, and we so conclude. 

You also ask how the appointment of an ineligible individual may be challenged. Under 

section 87.012 of the Local Government Code, various county officials are subject to removal from 

office by the district judge. Although the veterans county service officer is not among those 

specifically listed, the district judge is also empowered to remove “a county officer, not otherwise 

named by this section, whose office is created under the constitution or other law of this state.” TEX. 

Lot. GOV’T CODE ANN. 5 87.012(15) (Vernon 1999). Even if the veterans county service officer 

were a public officer subject to removal, however, failure to meet a statutory qualification is not a 

proper basis for removal. An officer may, in general, be removed for (1) incompetency; (2) official 

misconduct; or (3) intoxication, and an officer may be removed only for one of these three causes. 

State ex rel. Eidson v. Edwards, 793 S.W.2d 1,5 (Tex. Crim. App. 1990) (citing TEX. Lot. GOV’T 

CODE ANN. 5 87.013); Stern v. Stateexrel. Ansel, 869 S.W.2d614 (Tex. App.-Houston [14thDist.] 

1994, writ denied). 

Quo warranto generally is the proper means to challenge the right of a person to hold an 

office. State v. Fischer, 769 S.W.2d 619 (Tex. App.Xorpus Christi 1989, writ dism’d w.0.j.); 

Prince v. Znman, 280 S.W.2d 779, 782 (Tex. Civ. App.-Beaumont 1955, no writ). In Attorney 

General Opinion V-269, slrpra, the attorney general said that a quo warranto proceeding is the proper 

method to test the right of a veterans county service officer to hold his position. At the time 

Attorney General Opinion V-269 was issued, the veterans county service officer was specifically 

granted a “term of office.” See Act of May 22, 1989, 71st Leg., R.S., ch. 364, 5 3, 1989 Tex. Gen. 
The Honorable Pete P. Gallego - Page 3 (X-0151) 

Laws 1452, 1453 (repealing former subsection 434.033(e) of the Government Code). In 1989, the 

statute was amended to state that the veterans county service “officer serves at the pleasure of the 

commissioners court.” TEX. GOV’T CODE ANN. 5 434.003(d) (Vernon 1998). Quo warrant0 is a 

proceeding that is available, inter alia, if “a person usurps, intrudes into, or unlawfully holds or 

executes a franchise or an office. .” TEX. CIV. PRAC. &REM. CODE ANN. 5 66.001 (Vernon 1997) 

(emphasis added). We have found no case in which the right of a mere employee to hold a position 

was challenged by a quo warranto proceeding. Furthermore, it seems anomalous to permit the use 

of a legal proceeding like quo warranto to contest the holding of a position by an individual who 

could be removed by simple majority vote of a commissioners court. Thus, it is our view that quo 

warranto is not the proper vehicle to challenge the right of a veterans county service officer to hold 

his position. 

Other remedies may be available. The purpose of an action under the Declaratory Judgments 

Act, chapter 37 of the Civil Practice and Remedies Code, is “to settle and to afford relief from 

uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be 

liberally construed and administered.” Id. 5 37.002(b). Where a real and bona fide justiciable 

controversy exists, the settlement of which will serve a useful purpose, declaratory relief may 

properly be granted, even though it may not settle every question which has arisen between the 

parties. Town of Grz,zjjng Pork v. City ofPort Arthur, 628 S.W.2d 101, 102 (Tex. App.-Beaumont 

1981, writ ref d n.r.e). A declaratory judgment has been held to be available, for example, where 

an agency is exercising authority beyond its statutorily conferred powers. Nuchia v. Woodmfl, 956 

S.W.2d 612,616 (Tex. App.-Houston [14th Dist.] 1997, no pet.). It might be argued that aveterans 

county service offtcer who is not a veteran as required by statute is “exercising authority beyond” 

his “statutorily conferred powers.” 

An even more efficacious remedy might be a proceeding under chapter 65 of the Civil 

Practice and Remedies Code to enjoin the county auditor and/or county treasurer from issuing 

warrants to pay the salary of the veterans county service officer. In one instance, a court granted an 

injunction to prevent a school board from using current tax revenue to pay obligations incurred 

during a previous school year. Harberson v. Arledge, 438 S.W.2d 591 (Tex. Civ. App.-Fort Worth 

1969, writ ref d n.r.e.). In another, a court permitted taxpayers to maintain suit for injunction against 

a school board to prevent the expenditure ofpublic funds for a school building located on a site that 

had not been legally selected. Lawler v. Castroville Rural High Sch. Dist., 233 S.W.2d 613 (Tex. 

Civ. App.-San Antonio 1950, writ ref d). And another court enjoined the expenditure ofbond funds 

for roads that had not been designated in the election order. Thuyer v. Greer, 229 S.W.2d 833 (Tex. 

Civ. App.-Amarillo 1950, writ ref d n.r.e.). 

Mandamus to compel the commissioners court to appoint a statutorily qualified veterans 

county service officer is probably not a viable alternative. See Tex. Att’y Gen. Op. No. JC-0140 

(1999) at 3. Mandamus will lie to compel a public official to perform a ministerial act. Turner v. 

Pmitt, 342 S.W.2d 422,423 (Tex. 1961). An act is ministerial, however, only “when the law clearly 

spells out the duty to be performed by the official with sufficient certainty that nothing is left to the 

exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). 

Section 434.033(a) of the Government Code specifies neither the identity of the person to be 
The Honorable Pete P. Gallego - Page 4 (.Jc-0151) 

appointed, nor a time frame in which the commissioners court must make the appointment. Rather, 

it says merely that, when the court appoints a person to the position of veterans county service 

officer, the appointee must possess certain qualifications. Nor does any other law clearly spell out 

a mandatory duty to appoint with sufficient certainty that nothing is left to discretion. 

Furthermore, we do not believe the commissioners court could be directed by mandamus to 

dismiss the current occupant of the position. No statute requires that it do so. Nor are we aware of 

any common law duty that requires a governing body or other such entity to discharge an employee. 

Personnel decisions necessarily are suffused with substantial discretion. Commissioners who 

wilfully vote to appoint an individual who does not meet the statutory qualifications could be subject 

to removal from office for “incompetency” or “official misconduct” under section 87.013 of the 

Government Code, although we doubt whether such action would be successful. We note these 

possibilities not as an exhaustive list, but merely as an attempt to provide some possible options. 

Other causes of action may become available as circumstances develop. 
The Honorable Pete P. Gallego - Page 5 (JC-0151) 

SUMMARY 

A person who is not a veteran of the armed forces is not 

eligible to be a veterans county service officer. Quo warranto is not 

a proper vehicle to effect the removal of an ineligible individual, but 

other remedies, such as an injunction to prohibit the payment of 

salary warrants to an ineligible individual, may be available. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK RENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General - Opinion Committee