OFriCE “1 THE ATTORNEY

GENERAL.

STATE OFTEXAS 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 aveterans 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 aveterans county service officer in Pecos County, and if not, how the appointment ofsuch anindividual may be challenged. We conclude that anon-veteran’ is ineligible to serve as aveterans county service officer, that quo warrant0 is not aproper means of challenging the tenure ofanon-qualified individual, but that other legal remedies may be available. Acommissioners court in acounty with apopulation ofless than 200,000 may “maintain and operate” aveterans county service office under the terms of section 434.032(b) of the Government Code. Pecos County has apopulation of less than 200,000. When the office has been established, the commissioners court isdirected to “appoint aveterans county service officer and the number of assistant veterans county service officers that it considers necessary.” TEX. GOV’TCODEANN. $434.033(a) (Vernon 1998). Eligibility for the position is established by statute:

(b) To be appointed as an officer aperson must: (1) be qualified by education and training for the duties ofthe offke; (2) be experienced in the law, regulations, and rulings ofthe United States Department ofVeterans 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.

‘Anappointeeneednotbe aveteranifsheis“awidowedGold StarMotherOIunremanied widow of a servicemanorveteranwhosedeathresultedfromservice.”SeeTEX. Gov’rCODE

ANN. 5434.033(b)(3)(Vernon1998).The Honorable Pete P. Gallego - Page 2 (X-0151)

(c) To meet the service experience requirement of Subsection (b)(3) aperson must have: (1) served on active duty in abranch of the armed forces of the United States; (2) served for atleast four months orhave aservice-connected disability; and (3) been honorably discharged. (d) An officer serves atthe pleasure ofthe commissioners court. Id. 5434.033. Thus, aperson 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 aveteran. In Attorney General Opinion V-269 (1947) this office, in construing the predecessor statute to section 434.033, said that aperson who isnot aveteran isnot 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 aveterans county service officer, and we so conclude. You also ask how the appointment of an ineligible individual may be challenged. Under section 87.012 ofthe Local Government Code, various county officials are subject toremoval 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 iscreated under the constitution or other law ofthis state.” TEX. Lot. GOV’TCODEANN. 5 87.012(15) (Vernon 1999). Even ifthe veterans county service officer were apublic 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 ofthese three causes. State ex rel. Eidson v.Edwards, 793 S.W.2d 1,5 (Tex. Crim. App. 1990) (citing TEX.Lot. GOV’T CODEANN. 587.013); 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 aquo warranto proceeding isthe 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 ofoffice.” See Act of May 22, 1989, 71st Leg., R.S., ch. 364, 53, 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’TCODEANN.5434.003(d) (Vernon 1998). Quo warrant0 is a proceeding that is available, inter alia, if “a person usurps, intrudes into, or unlawfully holds or executes afranchise or an office.

.” TEX.CIV.PRAC.&REM. CODEANN.566.001 (Vernon 1997) (emphasis added). We have found no case in which the right of amere employee to hold aposition was challenged by aquo 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 acommissioners court. Thus, it is our view that quo warranto isnot the proper vehicle to challenge the right ofaveterans county service officer to hold his position. Other remedies may be available. The purpose ofan 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 ofGrz,zjjngPork 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 isexercising authority beyond its statutorily conferred powers. Nuchia v. Woodmfl, 956 S.W.2d 612,616 (Tex. App.-Houston [14th Dist.] 1997, no pet.). Itmight 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 topay the salary ofthe veterans county service officer. In one instance, acourt granted an injunction to prevent a school board from using current tax revenue to pay obligations incurred during aprevious school year. Harberson v.Arledge, 438 S.W.2d 591 (Tex. Civ. App.-Fort Worth 1969, writ ref dn.r.e.). In another, acourt 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 aviable alternative. See Tex. Att’y Gen. Op. No. JC-0140 (1999) at 3. Mandamus will lie to compel apublic official to perform aministerial act. Turner v. Pmitt, 342 S.W.2d 422,423 (Tex. 1961). An actisministerial, 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 beThe Honorable Pete P. Gallego - Page 4 (.Jc-0151)

appointed, nor atime 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 amandatory 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 ofthe position. No statute requires that it do so. Nor are we aware of any common law duty that requires agoverning body or other such entity to discharge an employee. Personnel decisions necessarily are suffused with substantial discretion. Commissioners who wilfully vote to appoint anindividual 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 aveterans county service officer. Quo warranto is not aproper 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