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Honorable Jack N. Fant Opinion No. C-452

CountyAttorney El Paso County Re: Whether, upon resignation of El Paso, Texas thepresent County Judge, an incumbent County Commissioner may tender his resignation and thereuponbe appointed County Judge by other County Commissionersacting as the Commissioners Court, Andy Bear Sir: related question.

Your request for an opinion on the above-captioned matter reads as follows:

"The Commissioners Court of El Paso County, Texas, with the exceptionof County Judge Glenn E. Woodard, on the 20th day of May, 

### 1965,requested that I obtain your department'sopinion on the above stated questions. Their request states as follows: 'Inasmuchas County Judge Glenn E. Woodard has announced that he will resign his post as County Jud e f! of El Paso County on or about July lst, 19.5; and inasmuchas County Commissioner Tom Mays has been unanimously selectedby his fellow Commissioners to succeed JudgeWoodard as County Judge, and has indicated that he will resign his commissionas County Commissioner at that time, the El Paso County Commissioners Court hereby respectfully requests that you obtain from theAttorney General of the State of Texas an opinion as to the legality of Commissioner Mays' succeedingJudge Woodard
as County Judge of El Paso County.' The foregoing request of me for an opinion was signedby all four County Commissionersof El Paso County, Texas, Including Tom Mays, County Commissioner of Precinct No. 4.

"Before setting out my brief, authorities and conclusionsherein on thesematters, it is firstnecessary to furnishyou with the pertinent facts surrounding the question or questions

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involved. Approximately ten days ago our incumbent County Judge, Glenn E. Woodard, through variousnews media, announced,and it is a matter oftcommon knowledge, thathe intends and will resign his post as County Judge of El Paso County, Texas, on or about July 1, 1965. The seniorCommissionerof this County,who has held thispost for approximately eight years, Is County Commissioner Tom Ways of PrecinctNo. 4. Judge Woodard, having made his announcement that he will resign on or about July 1, 

### 1965,the Commissioners Courthas met on at least two and I think three occasions and have decided to unanimously select Mr. Ways as a successor to JudgeWoodard as County Judge.

"Upon receipt of the formal requestby the CommissionersCourt for this opinion, which was inwriting, I asked to have an audience with them, which I did, however JudgeWoodard was absent but all four Commissionersattended. At thismeeting I asked the County Commissioners if Judge Woodard Intended to resign first at the
samemeeting and then upon his tender of resignationand the acceptanceof the same by the Court, if they intended then to appoint CommissionerMays to thisposition. My answer was 'yes' from the Commissioners. I explained to them thatperhaps if I predicated this opinion purely upon this point that It might be necessary in the future to obtain an opinion as to whether
or not Mr. Mays might resignprior to the time that JudgeWoodard resignedand have his vacancy filled, then attempt or desire to be appointed to the County judgeship,all of this assuming that It would be at the.ssmemeeting of the CommissionersCourt on or about July 1, 

### 1965. The Commissioners then after some discussion and my explanation evidenced
an intention that I also obtain an opinion

as to the latter question.

"I therefore respectfullyrequestyour department'sopinion upon the following two questions:

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### 3 (C-452)

(1)Whether, upon the resignationof the County Judge of El Paso County,Texas, an incumbent County Commissioner, in this instance County Commissioner of Precinct No. 4, may then tenderhis resignation and thereuponbe appointed County Judge by other Commissionersacting as a, Commissioners Court, this assuming that the Commissioners Courthas accepted the resignation of the County Judge and a vacancy has been created.

(2)Whether the incumbent Commissioner, that Is County Commissioners of Precinct No. 4 of El Paso County,might resignhis present post at the samemeeting and his

successorbe named by the County Judge, and then the incumbent County Judge tender his resignationand the samebe accepted by the Court, and thishaving been done the Court appoint the former Commissioner of Precinct No. 4 as County Judge of El Paso County, Texas."

The first question has been considered in two previous Attorney General's opinions,both of which held that
a public board cannot appoint one of itsmembers to an office

or position while he is still a member of the board. Opinion No. O-410, dated March 

### 15, 1939,held that a member of the Board of Directors of Texas Technological Collegewas not eligible for appointment to thepresidency of the College. The member had submitted his resignation from the Board and did not participate in the vote on his appointment, but at the time the appointment was made the Governor had not accepted his resignation or appointed his successor. The opinion held that under the "holdover"provisions of Article XVI, Section 17 of the Texas Constitution,his membership continueduntil his successorhad qualified, and that his appointmentwhile still a member of theBoard was void as being contrary to public policy.

In Opinion No. O-789, dated May 11, 1939, the county judgehad died and one of the county commissioners wanted to apply for appointment to fill the vacancy. The questionwas whether a member of the commissioners court,by tendering his resignationas commissionerand having it accepted by the remaining three commissioners,would be eligible and legally qualified tobe appointed county judge In the event the remaining three commissioners saw fit to appoint him. The

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opinionnoted that the commissioner'smembershipon the court would not be severed until his successorhad qualified (ArticleXVI, Section 17 of the Texas Constitution)and that the vacancy in the office of county judgewould have to be filledbefore the commissioner could effectuatehis reslgnation, since no one was authorized to appoint his successor except the county judge (Article2341, V.C.S.). It followed OpinionNo. O-410 In holding that the commissionerwas not eligible for appointment to the judgeship.

The holdings in these two opinions are based on the
common law rule declaring such appointments to be void as contrary to public policy. That rule becomes the law of this estateby virtue of Article 1, V.C.S.,which adopts the common law insofaras it does not conflictwith the Constitution and statutesof Texas, and we may recognize it as the law even ifno Texas court has previously declared the rule. State ex rel. Smith v. Bowman, 184 NJ. App. 549, 170 S.W. 700 w

We have failed to find any Texas case squarely in point,but at least one case has recognized the existence of the rule. Ehlinger v. Clark, 117 Tex. 547, 8,S.W.2d 666 (1928), is frequently cited in support of the rule,but an analysis of the opinion shows that the case appears to have been decided under the common lawprinciple thata personcannot hold two incompatibleoffices at the same time rather thanunder the principlehere involved,although some of the reasoning and conclusionsseem to be more nearly in linewith the latter principle. St. Louis SouthwesternRy. Co. of Texas v. Naples

., 30 S.W.2d 703 (w. 1930), trustees of a school district, in fulfilling its duty to appoint a board of equalization upon having exercised its discretion to appoint a tax assessor for the district instead of having the taxes assessed by the county tax assessor, could not empower itself to sit as the board of equalization. There Is some questionwhether the principlewith which we are now concernedwas the one on which the decision should have been based or was based, but in any event the court clearly recognized the existenceof the rule in the following quotation from the opinion (30 S.W.2d at 706):

"The statuteplainly evidences the will of the Legislature to grant thepower to the board of trustees to select and appoint an officialboard of equalization of assessments tobe composed,not of themselves,but of other qualified and suitablepersons. The words of the grant of authority,which alone can justify theaction of the board of trustees, cannotbe extended by implicationor inference to include the authority

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to choose and appoint themselves to be the board of equalization. In this view of the statute the board of trusteeswere without any authority, and it was an absolutely void act, as must be legally regarded, to appoint themselvesas the board of equalization of assessments. The principle is set out in 46 C.J. 8 43, p. 940, namely: @It is contrary to the policy of the law for an officer to use his official appointingpower to place himself in office, so that,
even in the absence of statutory inhibition, all officers who have the appointingpower are disqualified for appointment to the offices to which theymay appoint.'"

The full extent of the common law rule is summarized in the following quotation from 67 C.J.S. 130, Officers, 5 20:

"It is contrary to the policy of the law for
an officer to use his official appointingpower to place himself in office, so that, even in,the absence of a statutory inhibition,all officers who have the appointingpower are disqualified for appointment.to the offices towhich they may appoint; and similarly a member of an appointing board is ineligible for appointmentby the board,
even though his vote is not essential to a majority in favor of his appointment,and although he was not present when the appointmentwas made, and notwithstanding his term in the appointingbody
was about to expire; nor can the result be accomplished indirectlyby his resignationwith the intention that his successor shall cast his vote for him."

The great weight of authority among cases decided under the common law In other States is against eligibility of a person for an appointment tobe made by a board of which he is a member. The following cases discuss the public policy which forbids the appointment and collect some of the authorities

fact situation and hold merely that a member cannot vote for himself, without declaringhis ineligibility for appointment by other members of theboard, but many cases do reach the

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### (C-452)

questionof eligibility and hold against it. The only decisions
we have found which have rejected the rule of ineligibility

are by the courts of Connecticut,which hold that a member cannot vote for himself but that he is not rendered ineligible for appointmentupon the vote of othermembers. State ex rel. Oakey v. Fowler, 66 Conn. 294, 32 Atl. 

### 162,33Atl. 1005 (1895);~Stateex rel. Kenney v. Ranslow, 154A.2d 

### 526 (Conn. Super. 1959).

The policy of the law is stated in Weissinger, supra, as follows (131S.W. at

" * * * It is of thehighest importance that municipal and other bodies of public servants shouldbe free from every kind of personal influence inmaking appointments that carrywith them services towhich the public are entitled and compensation that the public must pay. And this freedom cannot in its full and fair sensebe securedwhen the appointee is a member of thebody and has the close opportunityhis association and relationsafford to place the other members under obligations that theymay feel obliged to repay. Fewpersons are altogether exempt from the influence that intimate business relations enable associates to obtain, and few strong enough to put asidepersonal considerations in dispensing,publicfavors. And it is out of regard for this human sentimentand weakness, and the fear that thepublic interest will not be so well protected if appointing bodies are not required to go outside their membership in selectionof public servants, that the rule announced has been adopted, and ought to be strictly applied."
p6 State ex rel. Bove v. McDaniel; 52 Del. 

### 304, 157A.2d 

### 463, 6 (IgbO),the court said:

' * * * Both the common law and the statute demand that the power of appointmentbe exercised fairlyand impartially. In order to attain this purpose it is important that the deliberations of the appointingbody not only be free from wrongdoingbut free from suspicionof wrong as well."

In view of the foregoingauthorities,we are of the opinion thatyour first question shouldbe answered **in** the negative. However, in connectionwith your second question,

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Hon. Jack N. Fant, page 

### 7 (C-452)

if a Commissionerunconditionallyresignshis present position and the County Judge appoints a successorwho qualifiesby taking the proper oath and making the necessary bond, then the former Commissionerwould have severed his connection as an officer and would be in the sameposition

as any other applicant who might apply far the office of County Judge, should there become a vacancy in the office of County Judge of that county.

The Attorney General's office cannotpass on factual questions;neither is this opinion to be construed

as suggesting that the Commissioners Courtappoint a Certain individual as County Judge, for this is a matter for the exclusive determination of the CommissionersCourt of a county if there shouldbe a vacancy in such office.

SUMMARY

A County Commissionerwho has tendered his resignation for the office continues tobe a member of the Commissioners Courtpursuant to theprovisions of Section 

### 17of Article XVI of the Texas Constitution until his successorhas been appointed and has qualifiedand under these circumstanceswould be ineligible to be appointed by the Commissioners Court to the office of County Judge because such an appointmentwould be contrary to public policy.

However, if the County Commissioner tenders his resignation unconditionallyand it is accepted by the County Judge, and in turn the County Judge appoints a successor who qualifies for such office, then the former County Commissionerwould be in the same position as any other applicantwho might apply for the office of County Judge in case there is a vacancy.

Yours very truly,

WAGGGNRR CARR Attorney General

BY John H. Banks Assistant


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