Untitled Texas Attorney General Opinion ( 1992 )

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DAN MORALES May 4,1992
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GESERAL
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Honorable Nathan B. Rheinlander Opinion No. DM-114
Comal County Attorney
150 N. Seguin, Suite 318 Re: Whether persons appointed to
New Braunfels, Texas 78130 boards and commissions by the com-
missioners 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
‘AttorneyGeneral Opinion H-l37 (1973). which is the basis of this suggestion, actuallyrelied
on a statute.expresslyauthorizingthe removal of port commissionersby the authoritythat appointed
them.
512W63.2100 P.O. BOX 12548 AUSTIN, TEXAS 78il I-2%8
,
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,MUNICIPALC%WORATIONS 0 12.255
(3d ed. 1985); see aLFoState 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 Coostitutionprovidesfor removalof 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 largelyindependent 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 office-
holder’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 articleXVI, section 1 of the Texas Ccmstitutionrequires elected and appointed officers
to take an oath of office, this requirementwill applyto a public officer even if the applicablestatute is
silent as to an oath. French Y.Stafe, 572 S.W.Zd934,93S (Tex. Grim.App. 1977); Attorney General
opinion Mw-177 (DSO).
‘In Gahwston CowtryCommh’ C.ou# v. Lohec, 814 S.W.2d 751 (Tcx. AppiHouston [14tb
Dii] 1991 wit granted), the county auditor sought a declarationthat 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-114 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 Q776.033.
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
pursuantto S.J.R. No. 27, Acts 1987,7OtbLeg, 0 1. Another section 4%ewhich authorizesthe creation
of jail districts,was adopted at the .November3, 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@ ofPort 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! Q794.035(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
vetoof 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