Untitled Texas Attorney General Opinion ( 1999 )

OFriCE
“1THEATTORNEY
GENERAL.
STATE
OFTEXAS
JOHN CORNYN
December 8, 1999
The Honorable Pete P. Gallego Opinion No. JC-015 1
Chair, General Investigating Committee
Texas House of Representatives Re: Removal of a veterans county service officer
P.O. Box 2910 who does not meet the requisite statutory
Austin, Texas 78768-2910 qualifications (RQ-0076-K)
Dear Representative Gallego:
You have requested our opinion as to whether a person who does not meet the statutory
requirement for the position may serve as a veterans county service officer in Pecos County, and if
not, how the appointment of such an individual may be challenged. We conclude that a non-veteran’
is ineligible to serve as a veterans county service officer, that quo warrant0 is not a proper means of
challenging the tenure of a non-qualified individual, but that other legal remedies may be available.
A commissioners court in a county with a population of less than 200,000 may “maintain and
operate” a veterans county service office under the terms of section 434.032(b) of the Government
Code. Pecos County has a population of less than 200,000. When the office has been established,
the commissioners court is directed to “appoint a veterans county service officer and the number of
assistant veterans county service officers that it considers necessary.” TEX. GOV’T CODE ANN.
$ 434.033(a) (Vernon 1998). Eligibility for the position is established by statute:
(b) To be appointed as an officer a person must:
(1) be qualified by education and training for the duties of the
offke;
(2) be experienced in the law, regulations, and rulings of the
United States Department of Veterans Affairs controlling cases that
come before the commission; and
(3) have the service experience specified by Subsection(c) or
be a widowed Gold Star Mother or umemarried widow of a
serviceman or veteran whose death resulted from service.
‘An appointee need not be a veteran if she is “a widowed Gold Star Mother OI unremanied widow of a
serviceman or veteran whose death resulted from service.” See TEX.Gov’r CODEANN.5 434.033(b)(3)(Vernon 1998).
The Honorable Pete P. Gallego - Page 2 (X-0151)
(c) To meet the service experience requirement of Subsection
(b)(3) a person must have:
(1) served on active duty in a branch of the armed forces of
the United States;
(2) served for at least four months or have a service-connected
disability; and
(3) been honorably discharged.
(d) An officer serves at the pleasure of the commissioners court.
Id. 5 434.033. Thus, a person appointed on the basis of service experience must be an honorably
discharged veteran of the armed forces with either four months service or a service-connected
disability.
You indicate that Pecos County has appointed to the position of veterans county service
officer an individual who is not a veteran. In Attorney General Opinion V-269 (1947) this office,
in construing the predecessor statute to section 434.033, said that a person who is not a veteran is not
eligible for the position ofveterans county service officer. See also Tex. Att’y Gen. Op. No. O-6489
(1945). Both the statute and Attorney General Opinion V-269 make it clear that a non-veteran is
ineligible for appointment as a veterans county service officer, and we so conclude.
You also ask how the appointment of an ineligible individual may be challenged. Under
section 87.012 of the Local Government Code, various county officials are subject to removal from
office by the district judge. Although the veterans county service officer is not among those
specifically listed, the district judge is also empowered to remove “a county officer, not otherwise
named by this section, whose office is created under the constitution or other law of this state.” TEX.
Lot. GOV’T CODE ANN. 5 87.012(15) (Vernon 1999). Even if the veterans county service officer
were a public officer subject to removal, however, failure to meet a statutory qualification is not a
proper basis for removal. An officer may, in general, be removed for (1) incompetency; (2) official
misconduct; or (3) intoxication, and an officer may be removed only for one of these three causes.
State ex rel. Eidson v. Edwards, 793 S.W.2d 1,5 (Tex. Crim. App. 1990) (citing TEX. Lot. GOV’T
CODE ANN. 5 87.013); Stern v. Stateexrel. Ansel, 869 S.W.2d614 (Tex. App.-Houston [14thDist.]
1994, writ denied).
Quo warranto generally is the proper means to challenge the right of a person to hold an
office. State v. Fischer, 769 S.W.2d 619 (Tex. App.Xorpus Christi 1989, writ dism’d w.0.j.);
Prince v. Znman, 280 S.W.2d 779, 782 (Tex. Civ. App.-Beaumont 1955, no writ). In Attorney
General Opinion V-269, slrpra, the attorney general said that a quo warranto proceeding is the proper
method to test the right of a veterans county service officer to hold his position. At the time
Attorney General Opinion V-269 was issued, the veterans county service officer was specifically
granted a “term of office.” See Act of May 22, 1989, 71st Leg., R.S., ch. 364, 5 3, 1989 Tex. Gen.
The Honorable Pete P. Gallego - Page 3 (X-0151)
Laws 1452, 1453 (repealing former subsection 434.033(e) of the Government Code). In 1989, the
statute was amended to state that the veterans county service “officer serves at the pleasure of the
commissioners court.” TEX. GOV’T CODE ANN. 5 434.003(d) (Vernon 1998). Quo warrant0 is a
proceeding that is available, inter alia, if “a person usurps, intrudes into, or unlawfully holds or
executes a franchise or an office. .” TEX. CIV. PRAC. &REM. CODE ANN. 5 66.001 (Vernon 1997)
(emphasis added). We have found no case in which the right of a mere employee to hold a position
was challenged by a quo warranto proceeding. Furthermore, it seems anomalous to permit the use
of a legal proceeding like quo warranto to contest the holding of a position by an individual who
could be removed by simple majority vote of a commissioners court. Thus, it is our view that quo
warranto is not the proper vehicle to challenge the right of a veterans county service officer to hold
his position.
Other remedies may be available. The purpose of an action under the Declaratory Judgments
Act, chapter 37 of the Civil Practice and Remedies Code, is “to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be
liberally construed and administered.” Id. 5 37.002(b). Where a real and bona fide justiciable
controversy exists, the settlement of which will serve a useful purpose, declaratory relief may
properly be granted, even though it may not settle every question which has arisen between the
parties. Town of Grz,zjjng Pork v. City ofPort Arthur, 628 S.W.2d 101, 102 (Tex. App.-Beaumont
1981, writ ref d n.r.e). A declaratory judgment has been held to be available, for example, where
an agency is exercising authority beyond its statutorily conferred powers. Nuchia v. Woodmfl, 956
S.W.2d 612,616 (Tex. App.-Houston [14th Dist.] 1997, no pet.). It might be argued that aveterans
county service offtcer who is not a veteran as required by statute is “exercising authority beyond”
his “statutorily conferred powers.”
An even more efficacious remedy might be a proceeding under chapter 65 of the Civil
Practice and Remedies Code to enjoin the county auditor and/or county treasurer from issuing
warrants to pay the salary of the veterans county service officer. In one instance, a court granted an
injunction to prevent a school board from using current tax revenue to pay obligations incurred
during a previous school year. Harberson v. Arledge, 438 S.W.2d 591 (Tex. Civ. App.-Fort Worth
1969, writ ref d n.r.e.). In another, a court permitted taxpayers to maintain suit for injunction against
a school board to prevent the expenditure ofpublic funds for a school building located on a site that
had not been legally selected. Lawler v. Castroville Rural High Sch. Dist., 233 S.W.2d 613 (Tex.
Civ. App.-San Antonio 1950, writ ref d). And another court enjoined the expenditure ofbond funds
for roads that had not been designated in the election order. Thuyer v. Greer, 229 S.W.2d 833 (Tex.
Civ. App.-Amarillo 1950, writ ref d n.r.e.).
Mandamus to compel the commissioners court to appoint a statutorily qualified veterans
county service officer is probably not a viable alternative. See Tex. Att’y Gen. Op. No. JC-0140
(1999) at 3. Mandamus will lie to compel a public official to perform a ministerial act. Turner v.
Pmitt, 342 S.W.2d 422,423 (Tex. 1961). An act is ministerial, however, only “when the law clearly
spells out the duty to be performed by the official with sufficient certainty that nothing is left to the
exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).
Section 434.033(a) of the Government Code specifies neither the identity of the person to be
The Honorable Pete P. Gallego - Page 4 (.Jc-0151)
appointed, nor a time frame in which the commissioners court must make the appointment. Rather,
it says merely that, when the court appoints a person to the position of veterans county service
officer, the appointee must possess certain qualifications. Nor does any other law clearly spell out
a mandatory duty to appoint with sufficient certainty that nothing is left to discretion.
Furthermore, we do not believe the commissioners court could be directed by mandamus to
dismiss the current occupant of the position. No statute requires that it do so. Nor are we aware of
any common law duty that requires a governing body or other such entity to discharge an employee.
Personnel decisions necessarily are suffused with substantial discretion. Commissioners who
wilfully vote to appoint an individual who does not meet the statutory qualifications could be subject
to removal from office for “incompetency” or “official misconduct” under section 87.013 of the
Government Code, although we doubt whether such action would be successful. We note these
possibilities not as an exhaustive list, but merely as an attempt to provide some possible options.
Other causes of action may become available as circumstances develop.
The Honorable Pete P. Gallego - Page 5 (JC-0151)
SUMMARY
A person who is not a veteran of the armed forces is not
eligible to be a veterans county service officer. Quo warranto is not
a proper vehicle to effect the removal of an ineligible individual, but
other remedies, such as an injunction to prohibit the payment of
salary warrants to an ineligible individual, may be available.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee