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Honorable Jack N. Fant Opinion No. C-452 

County Attorney 

El Paso County Re: Whether, upon resignation of 

El Paso, Texas the present County Judge, an 

incumbent County Commissioner 

may tender his resignation 

and thereupon be appointed 

County Judge by other County 

Commissioners acting 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 exception of County Judge Glenn 

E. Woodard, on the 20th day of May, 1965, requested 

that I obtain your department's opinion on the 

above stated questions. Their request states as 

follows: 'Inasmuch as 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 inasmuch as County 

Commissioner Tom Mays has been unanimously 

selected by his fellow Commissioners to succeed 

Judge Woodard as County Judge, and has indicated 

that he will resign his commission as County 

Commissioner at that time, the El Paso County 

Commissioners Court hereby respectfully requests 

that you obtain from the Attorney General of 

the State of Texas an opinion as to the legality 

of Commissioner Mays' succeeding Judge Woodard 

as County Judge of El Paso County.' The foregoing 

request of me for an opinion was signed by all 

four County Commissioners of El Paso County, 

Texas, Including Tom Mays, County Commissioner 

of Precinct No. 4. 

"Before setting out my brief, authorities 

and conclusions herein on these matters, it is 

first necessary to furnish you with the pertinent 

facts surrounding the question or questions 

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. 
Hon.'Jack N. Fant, page 2 (C-452) 

involved. Approximately ten days ago our 

incumbent County Judge, Glenn E. Woodard, 

through various news media, announced, and 

it is a matter oft common knowledge, that he 

intends and will resign his post as County 

Judge of El Paso County, Texas, on or about 

July 1, 1965. The senior Commissioner of 

this County, who has held this post for 

approximately eight years, Is County Commissioner Tom Ways of Precinct No. 4. Judge 

Woodard, having made his announcement that 

he will resign on or about July 1, 1965, the 

Commissioners Court has met on at least two 

and I think three occasions and have decided 

to unanimously select Mr. Ways as a successor 

to Judge Woodard as County Judge. 

"Upon receipt of the formal request by 

the Commissioners Court for this opinion, 

which was in writing, I asked to have an 

audience with them, which I did, however 

Judge Woodard was absent but all four 

Commissioners attended. At this meeting 

I asked the County Commissioners if Judge 

Woodard Intended to resign first at the 

same meeting and then upon his tender of 

resignation and the acceptance of the same 

by the Court, if they intended then to 

appoint Commissioner Mays to this position. 

My answer was 'yes' from the Commissioners. 

I explained to them that perhaps 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 resign prior to 

the time that Judge Woodard resigned and 

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.ssme meeting of the 

Commissioners Court 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 respectfully request your 

department's opinion upon the following two 

questions: 

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Hon. Jack N. Fant, page 3 (C-452) 

(1) Whether, upon the resignation of the 

County Judge of El Paso County, Texas, an 

incumbent County Commissioner, in this 

instance County Commissioner of Precinct 

No. 4, may then tender his resignation 

and thereupon be appointed County Judge 

by other Commissioners acting as a, 

Commissioners Court, this assuming that 

the Commissioners Court has 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 resign his 

present post at the same meeting and his 

successor be named by the County Judge, 

and then the incumbent County Judge tender 

his resignation and the same be accepted 

by the Court, and this having 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 its members 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 College was not 

eligible for appointment to the presidency 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 

continued until his successor had qualified, and that his 

appointment while still a member of the Board was void as 

being contrary to public policy. 

In Opinion No. O-789, dated May 11, 1939, the county 

judge had died and one of the county commissioners wanted to 

apply for appointment to fill the vacancy. The question was 

whether a member of the commissioners court, by tendering his 

resignation as commissioner and having it accepted by the 

remaining three commissioners, would be eligible and legally 

qualified to be appointed county judge In the event the 

remaining three commissioners saw fit to appoint him. The 

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Ron. Jack N. Fant, page 4 (C-452) 

opinion noted that the commissioner's membership on the court 

would not be severed until his successor had qualified 

(Article XVI, Section 17 of the Texas Constitution) and that 

the vacancy in the office of county judge would have to be 

filled before the commissioner could effectuate his reslgnation, since no one was authorized to appoint his successor 

except the county judge (Article 2341, V.C.S.). It followed 

Opinion No. O-410 In holding that the commissioner was 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 

estate by virtue of Article 1, V.C.S., which adopts the common 

law insofar as it does not conflict with the Constitution 

and statutes of Texas, and we may recognize it as the law even 

if no 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 law principle that a personcannot hold two 

incompatible offices at the same time rather than under the 

principle here involved, although some of the reasoning and 

conclusions seem to be more nearly in line with the latter 

principle. St. Louis Southwestern Ry. 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 question whether the 

principle with which we are now concerned was the one on which 

the decision should have been based or was based, but in any 

event the court clearly recognized the existence of the rule 

in the following quotation from the opinion (30 S.W.2d at 706): 

"The statute plainly evidences the will of the 

Legislature to grant the power to the board of trustees 

to select and appoint an official board of equalization 

of assessments to be composed, not of themselves, but 

of other qualified and suitable persons. The words 

of the grant of authority, which alone can justify 

the action of the board of trustees, cannot be extended 

by implication or inference to include the authority 

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Hon. Jack N. Fant, page 5 (c-452) 

to choose and appoint themselves to be the board 

of equalization. In this view of the statute 

the board of trustees were without any authority, 

and it was an absolutely void act, as must be 

legally regarded, to appoint themselves as 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 appointing power to place himself in office, so that, 

even in the absence of statutory inhibition, 

all officers who have the appointing power are 

disqualified for appointment to the offices 

to which they may 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 appointing power 

to place himself in office, so that, even in,the 

absence of a statutory inhibition, all officers 

who have the appointing power are disqualified 

for appointment. to the offices to which they may 

appoint; and similarly a member of an appointing 

board is ineligible for appointment by 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 appointment was made, and 

notwithstanding his term in the appointing body 

was about to expire; nor can the result be accomplished indirectly by his resignation with 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 to be 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 declaring his ineligibility for appointment 

by other members of the board, but many cases do reach the 

-2 144- 
Hon. Jack N. Fant, page 6 (C-452) 

question of 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 appointment upon the vote of other members. State ex rel. 

Oakey v. Fowler, 66 Conn. 294, 32 Atl. 162, 33 Atl. 1005 

(1895);~State ex rel. Kenney v. Ranslow, 154 A.2d 526 (Conn. 

Super. 1959). 

The policy of the law is stated in 

Weissinger, supra, as follows (131 S.W. at 

" * * * It is of the highest importance that 

municipal and other bodies of public servants 

should be free from every kind of personal influence 

in making appointments that carry with them services 

to which the public are entitled and compensation 

that the public must pay. And this freedom cannot 

in its full and fair sense be secured when the 

appointee is a member of the body and has the close 

opportunity his association and relations afford 

to place the other members under obligations that 

they may feel obliged to repay. Few persons are 

altogether exempt from the influence that intimate 

business relations enable associates to obtain, 

and few strong enough to put aside personal 

considerations in dispensing,public favors. And 

it is out of regard for this human sentiment and 

weakness, and the fear that the public interest 

will not be so well protected if appointing 

bodies are not required to go outside their 

membership in selection of 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, 157 A.2d 463, 

6 (IgbO), the court said: 

' * * * Both the common law and the statute 

demand that the power of appointment be exercised 

fairly and impartially. In order to attain this 

purpose it is important that the deliberations 

of the appointing body not only be free from 

wrongdoing but free from suspicion of wrong as 

well." 

In view of the foregoing authorities, we are of the 

opinion that your first question should be answered in the 

negative. However, in connection with your second question, 

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- 

Hon. Jack N. Fant, page 7 (C-452) 

if a Commissioner unconditionally resigns his present 

position and the County Judge appoints a successor who 

qualifies by taking the proper oath and making the necessary 

bond, then the former Commissioner would have severed his 

connection as an officer and would be in the same position 

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 cannot pass on 

factual questions; neither is this opinion to be construed 

as suggesting that the Commissioners Court appoint a Certain 

individual as County Judge, for this is a matter for the 

exclusive determination of the Commissioners Court of a county 

if there should be a vacancy in such office. 

SUMMARY 

A County Commissioner who has tendered his 

resignation for the office continues to be a 

member of the Commissioners Court pursuant to 

the provisions of Section 17 of Article XVI of 

the Texas Constitution until his successor has 

been appointed and has qualified and under these 

circumstances would be ineligible to be appointed 

by the Commissioners Court to the office of County 

Judge because such an appointment would be contrary 

to public policy. 

However, if the County Commissioner tenders 

his resignation unconditionally and 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 Commissioner would be in 

the same position as any other applicant who 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 

Jm:sj 

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