DAN MORALES 

:,TTOHSGESERAL ’EI 

@ffice of tip !Zlttornep Qhmeral 

&ate of ?Eexae 

May 4,1992 

Honorable Nathan B. Rheinlander 

Comal County Attorney 

150 N. Seguin, Suite 318 

New Braunfels, Texas 78130 

Opinion No. DM-114 

Re: Whether persons appointed to 

boards and commissions by the commissioners court are subject to removal 

by the commissioners court (RQ-72) 

Dear Mr. Rheinlander: 

You inquire about the removal of individuals from certain boards and 

commissions whose members are appointed by the commissioners court. The 

entities in question are the Coma1 County Water Oriented Recreation District 

(W.O.R.D.), see Local Gov’t Code ch. 324, the four Fire Prevention Districts, see 

Health & Safety Code ch. 794, and the Emergency Services District, see Health & 

Safety Code chs. 775,776 (counties of 125,000 or less). The statutes governing these 

entities are silent as to removal of board members. You wish to know whether the 

board members are county officers, subject to removal by the district judge after a 

jury trial, as set out in article V, section 24 of the Texas Constitution and sections 

87.001 through 87.032 of the Local Government Code. You also suggest that the 

appointees serve at the pleasure of the commissioners court, subject to dismissal by 

the court at any time.’ 

Article V, section 24 of the Texas Constitution provides as follows: 

County Judges, county attorneys, clerks of the District and 

County Courts, justices of the ~peace, constables, and other 

county officers, may be removed by the Judges of the District 

Courts for incompetency, of&&l misconduct, habitual 

drunkenness, or other causes defined by law, upon the cause 

‘Attorney General Opinion H-l37 (1973). which is the basis of this suggestion, actually relied 

on a statute. expressly authorizing the removal of port commissioners by the authority that appointed 

them. 

512W63.2100 P.O. BOX 12548 AUSTIN, TEXAS 78il I-2%8 

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Honorable Nathan B. Rheinlander - Page 2 ( DM- 114 ) 

therefor being set forth in writing and the 6nding of its truth by 

a jury.2 (Footnote added.) 

See &o Local Gov’t Code 5 87.012 (district judge may remove county officers from 

office, including “a county officer, not otherwise named by this section”). 

As a general rule, officers and employees may be removed only in the 

manner designated by statute. 4 MCQUILLIN, MUNICIPAL C%WORATIONS 0 12.255 

(3d ed. 1985); see aLFo State ex reL Hickman v. Alcom, 14 S.W. 663,665 (Tex. 1890) 

(removal statutes are subject to strict construction). Thus, when an officer has a set 

term, as opposed to serving at the pleasure of the appointing authority, the officer is 

not subject to removal at the will of the appointing authority. Don.@& v. State er 

reL Allred, 73 S.W.2d 83 (Tex. 1934); Attorney General Opinion JM-1064 (1989). 

Where a valid statute prescribes the removal method for a county officer, that 

method is deemed exclusive. State a reL Kelly v. Baker, 580 S.W.2d 611,614 (Tex. 

Civ. App.-Amarillo 1979, no writ); State ex rel. Dow v. Hamq, 164 S.WZd 55 

(Tex. Civ. App.-San Antonio 1942, writ refd w.o.m.); see aLro Garcia v. Laughlin. 

285 S,W.2d 191 (Tex. 1955). 

In Akline Indep. School Disk v. Standlqv, 280 S.W.2d 578 (Tex. 1955). the 

Texas Supreme Court concluded that the tax assessor-collector appointed by a 

school board was an employee and not an officer subject to removal only under the 

constitutional provision. The applicable statute authorized, but did not require, the 

school board to appoint its own tax assessor-collector. Moreover, it did not fix a 

term of office for the assessor-collector, require him to take the oath of office, 

provide for removal, or establish his qualifications. Finally, the statute vested in the 

school board the authority to determine rendition procedures and to adopt 

measures for assessing property and collecting taxes. The court concluded that “the 

governing body of the taxing district is the agency which is vested by the Legislature 

with the sovereign powers of the State in assessing and collecting taxes.” 280 S.W.2d 

at 581. The tax assessor-collector was only g agent or employee of the school 

board. Id at 582-83. 

The ‘supreme court in Akfine Independent School District, quoted the 

following definition of “public officer” from Dunbar v. Bmzoria County, 224 S.W.2d 

738, 740-41 (Tex. Civ. App.-Galveston 1949, writ refd), which concluded that the 

*Article XV of the Texas Coostitution provides for removal of state officers. 

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Honorable Nathan B. Rheinlander - Page 3 (DM- 114 ) 

county road engineer was not a “public officer” for purposes of article V, section 24 

of the Texas Constitution: 

(Tlhe determining factor which distinguishes a public officer 

from an employee is whether any sovereign function of the 

government is conferred upon the ~individual to be exercised by 

him for the benefit of the public largely independent of the control 

of others. 

280 S.WJd at 583 (citing 224 S.W.2d at 740-41) (emphasis added by supreme court). 

This definition sumrnarixes the essential elements of public office: the officeholder’s authority to exercise governmental power for the benefit of the public and 

his independence from the control of other governmental entities-s The nature of 

the power conferred upon the individual is relevant to the first element, while the 

fixed term and freedom from dismissal at another’s discretion are relevant to the 

second. 

A board member must meet this definition of “officer;” and be a “county 

officer” as well, to be subject to removal by the district judge pursuant to article V. 

section 24 of the Texas Constitution and chapter 87 of the Local Government Code. 

Bomerv. BeLrterling. 138 S.W. 571,574 (Tex. 1911). Trustees of school districts have 

been held to be “county officers,” subject to removal in accordance with the statutes 

adopted under article V, section 24. Fowler v. Tlromar, 275 S.W. 253 (Tex Civ. 

App.-Austin 1925, writ dism’d w.0.j.); Hendericks v. State, 49 S.W. 705 (Tex. Civ. 

App. 1899, no writ); see Bomer, 138 S.W. at 573 (expressly approving holding in 

Hem&vi&s). The court in Hendericks determined that for purposes of removing 

school district trustees, districts were “subdivisions of the county.4 as are 

%IIce article XVI, section 1 of the Texas Ccmstitution requires elected and appointed officers 

to take an oath of office, this requirement will apply to a public officer even if the applicable statute is 

silent as to an oath. French Y. Stafe, 572 S.W.Zd 934,93S (Tex. Grim. App. 1977); Attorney General 

opinion Mw-177 (DSO). 

‘In Gahwston Cowtry Commh’ C.ou# v. Lohec, 814 S.W.2d 751 (Tcx. AppiHouston [14tb 

Dii] 1991 wit granted), the county auditor sought a declaration that a beack park board established 

by a county under chapter 62 of the Natural Resources Code was a county department required to 

make puxkases and pay claims tkrougb the county auditor and its purcbasiag agent. The court of 

appeals ruled that beach park boards were not departments or subdivisions of the county, but 

independent entities separate from the count, thus, they were not required to use the county auditor 

or pwhasiig agent. 

p. 583 
Honorable Nathan B. Rheinlander - Page 4 (DM-1 14 1 

commissioners’ and justices’ precincts,” and that precinct officers were “county 

officers.” 49 S.W. at 705-06 (footnote added). It concluded that trustees of school 

districts were county officers, and this conclusion was approved by the Texas 

Supreme Court in Banner, 138 S.W. at 573. See ako Engleman Lard Co. v. Donna 

Inigatioq Dirt No. I, 209 S.W. 428 (Tex. Civ. App.-San Antonio 1919, writ refd) 

(stating in dicta that elected director of irrigation district was county officer witbin 

removal statute). 

We will examine the statutes governing the three districts in question to 

determine whether members of their governing boards are “county officers” within 

the statute and constitutional provision governing removal of county officers. Both 

an emergency services district and a fire protection district may be created wholly in 

one county or in territory located in more than one county. Health & Safety Code 

$9 776.011. 776.012, 794.011, 794.012. However, the districts you inquire about are 

all located wholly within Comal County; thus, we will address only those provisions 

applicable to districts located,wholly within one county. 

Article III, section 48-e of the Texas Constitutions authorizes the enactment 

of legislation providing for the creation of special districts for emergency services, 

such as emergency medical services, emergency ambulance services, and rural fire 

prevention and control services. Chapter 776 of the Health and Safety Code, which 

provides for the creation of emergency services districts in counties of 125,000 or 

less, governs the Comal County district. An emergency services diitrict is 

established by election after a petition is filed with the county judge and the 

commissioners court holds a public hearing on the pros and cons of creating a 

district. Id 99 776.011,776.013 - .016,776.019. If the commissioners court finds that 

creation of the district is feasible and will promote the public safety, welfare, health, 

and convenience of persons residing in the proposed district, it must grant the 

petition and order an election to confirm the district’s creation and authorize it to 

impose a tax- Id $8 776.017 - .019. 

The commissioners court of the county appoints the board members that 

govern an emergency services district located wholly in one county. Id Q 776.033. 

Board members serve two-year terms, except for two members of the initial board 

tie text of this constitutional provision was adopted at the November 3, 1981 election 

pursuant to S.J.R. No. 27, Acts 1987,7Otb Leg, 0 1. Another section 4%e which authorizes the creation 

of jail districts, was adopted at the .November 3, 1987 election pursuant to HJ.R. No. lS, Acts 19S7, 

7OthLc&Ol. 

p. 584 
Honorable Nathan B. Rheinlander - Page 5 (DM-114 ) 

appointed to one-year terms. Id 3 776.033(b). The board is required to administer 

the district in accordance with chapter 776 of the Health and Safety Code, tL 

5 776.035(a)(5), which authorizes it to exercise various governmental powers. The 

district may acquire and sell real and personal property; appoint officers, agents, 

and employees; sue and be sued; impose and collect taxes; exercise certain specific 

powers relevant to providing emergency services; and enter into contracts. Id 

9 776.031. Because these governmental powers are conferred upon the board, to be 

exercised for the benefit of the public largely independent of the control of others, 

the board members are public officers within the definition in Aldine Independenr 

School District. See Ci@ of Port Arthur v. Wallace, 171 S.W.2d 480,481 (Tex. 1943) 

(providing fire protection is governmental function); City of Sm Angelo v. Deutsch, 

91 S.W.2d 308,309 (Tex. 1936) (tax collection); Cig of Dullas v. Moreau. 718 S.W.2d 

776 (Tex. Civ. App.-Corpus Christi 1986, writ refd n.r.e.) (hiring and firing 

employees). 

We believe that the members of the board of the emergency services district 

for Comal County are county officers. The district is located within tbe county, and 

its purpose is to provide emergency services for the people of the county. Board 

members are appointed and vacancies are filled by the commissioners court. Health 

& Safety Code 9 776.033. The board must file an annual report with the court on 

the district’s administration and financial condition, id 9 776.035(a)(4), and cannot 

issue bonds without the court’s approval. Id 5 776.076. Tlu, the commissioners 

court has a significant role in its creation as well as a continuing role in its 

operation. Based on these relationships between the emergency services district and 

the county, the members of the district board are county officers for purposes of the 

removal statute. See Henderickx 49 S.W. 705; Attorney General Opinion JM-1064 

(members of board of managers of county hospital district are county offtcers). 

Therefore, board members may be removed only by trial in accordance with the 

provisions of article V, section 24 of the Texas Constitution, and chapter 87 of the 

Local Government Code; the commissioners court has no power to remove them. 

Article III, section 48-d of the Texas Constitution authorizes legislation 

providing for the creation of rural fire prevention districts. The provisions on the 

creation and governance of a fire protection district located wholly within one 

county track the provisions applicable to an emergency services district. See, eg.. 

Health & Safety Code 03 794.013 - .020 (creation of district by election following 

petition procedure). For example, the commissioners court appoints the members 

of the governing board to two-year terms and fills vacancies on the board. Id 

8 794.033. The board has power to acquire and sell real and personal property, 

p. 585 
Honorable Nathan B. Rheinlander - Page 6 (DM- 114 ) 

enter into contracts, appoint officers, agents, and employees, sue and be sued, levy 

and enforce the collection of taxes, and to “perform other acts necessary to carry out 

the intent of . . . chapter [794 of the Health and Safety Code].” Id 0 794.031. The 

board of the rural fire prevention district must also report to the commissioners 

court, ia! Q 794.035(a)(4), and may not issue bonds or notes without the approval of 

the commissioners court, id 5 794.076. 

The provisions applicable to the rural fire protection districts in Comal 

County are virtually identical in relevant aspects to the provisions governing the 

emergency services districts. For the reasons discussed in connection with the 

officers of the emergency service districts, the members of the board governing the 

6re prevention district are also county officers within article V, section 24 of the 

constitution and section 87.012 of the Local Government Code. Accordingly, they 

too may only be removed by a district judge in accordance with those procedures. 

The Comal County W.O.R.D. is a park district created pursuant to chapter 

324 of the Local Government Code, which authorizes creation of a park district in 

the unincorporated area of a county that has river frontage on both the Guadalupe 

and Comal rivers. Local Gov’t Code 9 324.001. A district is created by an election 

ordered by the commissioners court, and it may be dissolved by order of the 

commissioners court. Id 90324.024, 324.124. The district governing board is 

appointed to two-year terms by the commissioners court. Id 0 324.041. Board 

members take the official oath, see Tex. Const. art. XVI, 5 1, and file a bond with 

the county clerk. Local Gov’t Code 9 324.042.’ In addition to these indicia of office, 

the statute confers several governmental powers upon the board. See. eg., ia! 

08 324.064 (enter into contracts), 324.066 (adopt rules for use of park, enforceable 

by criminal penalty), 324.067,324.068 (acquire and sell land), 324.091 (issue revenue 

bonds after authorization by bond election), 325.068 (invest the district’s funds). 

The board is, however, subject to the supervision of the commissioners court 

in accordance with the following provision: 

(a) The board is subject to the supervision of the 

commissioners court in the exercise of all its rights, powers, and 

privileges and in the performance of its duties. 

(b) Not later than the 30th day after the date on which the 

board acts, the commissioners court may approve or disapprove 

the action. If the court disapproves the act, the act is ineffective. 

p. 586 
Honorable Nathan B. Rheinlander - Page 7 (DM- 114 ) 

Otherwise, the act becomes effective on the date that the 

commissioners court approves the act or on the 31st day after 

the date on which the board acted, whichever is first. 

Id # 324.045. 

Thus, the commissioners court is authorized to veto exercises of 

governmental power by the Comal County W.O.R.D. Board. Nonetheless, the 

W.O.R.D. Board is the entity upon which is conferred some part of the sovereign 

authority of the state. Its powers are delegated to it by statute and not by the 

commissioners court. It exercises these powers in its own right, and not as an agent 

of the commissioners court. See Green v. Stewart, 516 S.W.2d 133, 136 (Tex. 1974) 

(“One who acts in his own right is, in the words of Aldine and Dunbar, largely 

independent of the control of others”). Only the board may initiate the exercise of 

the district’s powers, and its determinations will govern the district unless 

disapproved within 30 days by the commissioners court.6 We believe that the 

board’s authority to initiate the exercise of governmental powers is a “sovereign 

function of the government” conferred upon it to be exercised “largely independent 

of the control of others.” Accordingly, board members are public officers within the 

test set out in Akiine Independent School District. 

We also conclude that they are county officers. The district was created 

within the boundaries of Comal County, and its relationship to the county governing 

body is even closer than that of the emergency services district board or the rural 

fire prevention district board. Members of the Comal County W.O.R.D. Board are 

county officers subject to removal only in accordance with article V, section 24 of 

the constitution and section 87.012 of the Local Government Code. 

In conclusion, the commissioners court does not have authority to discharge 

members of the governing boards of the emergency services district in the county, 

the fire prevention districts in the county, or the members of the Comal County 

Water Oriented Recreation District. Members of these boards are county officers, 

subject to removal only by a district court judge pursuant to article V, section 24 of 

the Texas’Constitution, and chapter 87 of the Local Government Code. They are 

not subject to dismissal by the commissioners court. 

%E. dlocation of power between the W.O.R.D. board and the commissioners court is 

somewhat Iike the allocation of power between the legislature and the governor in the adoption and 

veto of legislation. See Tex. Cons. art. III, 0 1; art. IV, p 14. 

p. 587 
Honorable Nathan B. Rheinlander - Page 8 (DM- 114 1 

SUMMU 

County officers may be removed from office only by the 

district judge after a triaJ, in accordance with article V, section 

24 of the Texas Constitution and sections 87.001 through 87.832 

of the Local Government Code. Members of the governing 

board of an emergency services district established wholly in one 

county under chapter 776 of the Health and Safety Code, 

members of the governing board of a rural fire prevention 

district established wholly within one county under chapter 794 

of the Health and Safety Code, and members of the board of the 

Comal County Water Oriented Recreation District established 

under chapter 324 of the Local Government Code, are county 

officers within article V, section 24 of the Texas Constitution. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Susan L Garrison 

Assistant Attorney General 

p. 588