Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
April 26, 1983
JIM MATTOX
Attorney General
Honorable Gary Thompson Opinion No. JM-26
Supreme Court Building
I’. 0. Box 12546
Chairman
Austin, TX. 76711. 2546 Committee on County Affairs Re: Constitutionality of Com-
5121475.2501 Texas House of Representatives mittee Substitute House Bill
Telex 9101874-1367 P. 0. Box 2910 No. 570 relating to continuing
Telecopier 5121475.0266 Austin, Texas 78711 education requirement for a
county treasurer
1607 Main St., Suite 1400
Dallas, TX. 75201-4709 Dear Representative Thompson:
2141742-6944
You have requested our opinion regarding the constitutionality of
4624 Alberta Ave.. Suite 160
House Bill No. 570, presently pending in the Sixty-eighth Legislature.
El Paso. TX. 79905.2793 The bill provides, in pertinent part:
9151533.3484
Article 1705a. Continuing Education
.20 Dallas Ave., Suite 202
Houston, TX. 77002-6986 sec. 1. In each calendar year during which a
7131650-0666 county treasurer iyill be in office at least six
months, the treasurer must successfully complete a
course of instruction in the performance of the
606 Broadway Suite 312
duties of county treasurer.
Lubbock, TX. 79401.3479
6061747-5238
Sec. 2. A course required by this article must
include at least 20 hours of instruction in an
4309 N. Tenth. Suite B accredited public institution of higher education.
McAllen, TX. 78501-1665
5121682.4547
. . . .
200 Main Plaza. Suite 400 Article 1706. Office Declared Vacant.
San Antonio. TX. 76205.2797
51212254191
The county judge shall declare the office of
county treasurer vacant if the person e,lected
An Equal OpportunityI treasurer fails to give the bonds required by
Affirmative Action Employer article 1704, Revised Statutes, and take the
official oath within twenty days after receiving
his certificate of election. If a treasurer. . .
fails to demonstrate his continuing competency by
successfully completing a course of instruction
required by Article 1705a, Revised Statutes, he
shall be removed from the office in the manner
provided by law.
p. 112
Honorable Gary Thompson - Page 2 (JM-26)
-\
Article XVI, section 44, of the Texas Constitution establishes the
office of county treasurer. It reads as follows:
The Legislature shall prescribe the duties and
provide for the election by the qualified voters
of each county in this State, of a County
Treasurer and a County Surveyor, who shall have an
office at the county seat, and hold their office
for four years, and until their successors are
qualified; and shall have such compensation as nay
be provided by law.
See Attorney General Opinion MU-59 (1979) (legislature not authorized
to abolish office of county treasurer). Article V, section 24, of the
Texas Constitution provides for the removal of county officers. This
provision reads 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, official misconduct, habitual
drunkenness, or other causes defined by law, upon
the cause therefor being set forth in writing and -7
the finding of its truth by a jury.
The removal procedure is set out in articles 5970 through 5987,
V.T.C.S.
The county treasurer is a county officer subject to removal under
this provision. In State ex. rel. Downs v. Harney, 164 S.W.2d 55
(Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.), the court
stated that causes for removal of elective county officials are
prescribed by the constitution and by statutes expressly or by
necessary implication authorized in the constitution. The Harney
court considered the appropriate procedure for removal of an officer
who violated the nepotism law. It did not question that violation of
the nepotism law was a proper ground for removal. The court in Garcia
v. Laughlin, 285 S.W.2d 191 (Tex. 1955) considered the proper official
to institute suit to remove a county officer for violation of the
Nepotism Act without questioning the ground for removal.
We believe that the Legislature may authorize removal of a county
treasurer for failure to complete the continuing education requirement
defined in article 1705a, V.T.C.S. The ground for removal is
authorized under article V, section 24, of the Texas Constitution
either as evidence of incompetency or as another cause "defined by
law." Consequently, we believe the amendment to article 1706,
V.T.C.S., is valid on its face. We do not address questions of
p. 113
Honorable Gary Thompson - Page 3 (JM-26)
unconstitutionality in application for example if it were impossible
to comply with the requirement Seth out in particle 1705a due to the
unavailability of the required course.
SUMMARY
The legislature is authorized to require
elected county treasurers, as a condition of
remaining in office, to successfully complete, in
each calendar year, a course of instruction in the
performance of their duties. House Bill No. 570
authorizing removal of the treasurer for failure
to complete this requirement is not inconsistent
with article V, section 24, of the Texas
Constitution.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton
p. 114