Untitled Texas Attorney General Opinion ( 1988 )

Honorable John F. Miller, Jr. Opinion No. JR-874
Criminal District Attorney
P. 0. BOX 3030 Re: Qualifications of civil
Texarkana, Texas 75504 service commissioners
(RQ-1340)
Dear Mr. Miller:
you ask several questions regarding the Fire Fighters'
and Police Officers' Civil Service Commission in
Texarkana, Texas. you indicate that the current chairman
of the commission served on the Texarkana, Texas, Rousing
Authority until May,' 1986, and was appointed to the civil
service commission approximately three months later. In
addition, one of the other two civil service commissioners
.r held the office of school district trustee at the time of
his appointment to the commission in Ray, 1987.
Roth of those., appointments were made while fire
fighters' and police officers' civil service commissions
were governed by article 1269m, V.T.C.S. Section 3(b) of
that statute set out the following qualifications for
commissioners:
All such Commissioners shall be of good
moral character, citizens of the United
States, resident citizens of the particular
city for which they are appointed, shall
have resided in said city for a period of
more than three (3) years, shall each be
over the age of twenty-five (25) years, and
shall not have held anv Dublic office with-
in the urecedins three (3) vears. (Emphasis
added.)
Acts 1985, 69th Leg., ch. 910, 51, at 3046, reDealed bv
Acts 1987, 70th Leg., ch. 149, 549 (l), at 2544. Current
law maintains the same requirements, but in slightly
different form. See Local Gov't Code 5143.006(c).
You first ask whether the underscored requirement
P, ,. disqualifies the present chairman of the.commission. A
'housing commissioner is regarded as a public officer.
p. 4261
Honorable John F. Miller, Jr. - Page 2 (JM-874)
Attorney General Opinion, M-1096 (1972); see also Housinq
oritv of Harlincen . State ex rel. VelascueG, 539
S.W.2d 911, 915 (Tex. C‘;v. App. - Corpus Christi 1976,
writ ref'd n.r.e.). Thus, because the individual in
question held public office within the three years prior
to August, 1986, he was ineligible for appointment to the
commission at that time.
you next ask whether the same requirement also dis-
qualifies the commissioner who served as an elected school
board member at the time of his appointment. Like a
housing commissioner, a school district trustee holds
public office. Attorney General Opinion V-834 (1949); -
w Educ. Code 523.08 (requiring elections for trustees
of independent school districts). Thus, like the former
housing commissioner, the school board member was in-
eligible for appointment to the civil service commission.
Your third question relates to the validity of
actions taken by a commission during the tenure of an
appointee subsequently found ineligible. The identical
question watiresented in Vick v. Citv f Waco, 614 S.W.Zd
861 (Tex. . App. - Waco 1981, wryt ref'd n.r.e.).
There, a firemen's and policemen's civil service commis-
sion had dismissed an officer of the Waco Police Depart-
ment. The dismissed officer brought suit to compel
reinstatement, claiming, inter alia, that the commission's
decision was invalid because the commission was not
composed of a quorum of duly qualified commissioners. The
plaintiff charged, and the court acknowledged, that two of
the three commissioners had held public office within the
three years preceding their appointments. Nonetheless,
the court upheld the commissiongs order, declaring that
the challenged commissioners were "de facto members,
acting under the color of authority," and that their acts
were therefore immune from collateral attack. 614 S.W.2d
at 864.
A de facto officer is one WhOi by his acts, has the
appearance of holding the office he has assumed, but who
in fact does not validly hold the office. G rm v
&p.g, 222 S.W.2d 172, 176 (Tex. Civ. App. - FzrtanWorth
1949, writ ref'd n.r.e.); atv of Christine v. Johnson,
255 S.W. 629 (Tex. Civ. App. - San Antonio 1923, no writ).
The designation of "de facto officer" may attach to one -\,
who holds office .under color of an appointment that is
subsequently invalidated on the grounds that the appointee
was ineligible. Worton v. Shelby County, 118 U.S. 425,
446 (1886); Ex carte Tracey, 93 S.W. 538, 542 (Tex. Crim.
App. 1905). Acts performed by a .de facto officer under
color af office are considered valid. Norton v. Shelby.
p. 4262
Honorable John F. Miller, Jr. - Page 3 (JW-874)
!;ytv, 118 U.S. at,441-42: s v. Pane, 222 S.W.2d at
S aenerallv 39 Tex. Jur. 2d Wuniciual Corporations
514; anycases cited therein: 67 C.J.S. Officers 95269-70.
Here, as in Vick v. Citv of Waco the challenged
officers were acting under color of auth&ity. Thus, each
was a de facto officer, and "as such his acts are as
binding as though he was an officer de jure." Shriber v.
Culberson, 31 S.W.2d 659, 661 (Tex. Civ. App. - Waco 1930,
no writ).
your fourth and fifth questions relate to the proce-
dure for removal of the officers in question.. was noted by
the court in Vick Citv f wacp 614 S.W.2d at 864, a
guo warrant0 proceeding is"the e&clusive remedy to test
the right of an officer to hold office. An action in quo
warrant0 may be initiated by the Attorney General or by a
county or district attorney. Civ. Prac. and Rem. Code
566.002. If the court finds that the subject of the
action holds office unlawfully, the court may remove the
individual from office, charge him with the costs of
prosecution, and impose such fine as the court deems
appropriate. Civ. Prac. and Rem. Code 566.003.
,-
SUMMARY
Section 3(b) of former article 1269m,
V.T.C.S. (now section 143.006.of the Local
Government Code), provides that an appointee
to a Fire Fighters' and Police Officers'
Civil Service Commission must not have held
public office within the preceding three
years. That provision rendered ineligible
both (1) an individual who had recently
served on a municipal housing authority: and
(2) an individual who had recently been
elected to a local school board.
Acts‘of. de facto officers are valid.
An action in guo warrant0 is the exclusive
remedy to: challenge an officer's right to
continue to hold office.
JIM. MATTOX
Attorney General of Texas
p. 4263
Honorable John F. Miller, Jr. - Page 4 (JM-874)
MARY KELLER
First Assistant Attorney General
Lou MCcREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLJ?.Y
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 4264