Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 3/9/2000
Status: Precedential
Modified Date: 7/6/2016
Office of the Attorney General — State of Texas John Cornyn The Honorable Becky B. McPherson District Attorney 110th Judicial District Floyd County Courthouse P.O. Box 10 Floydada, Texas 79235-0010
Re: Whether a person who was ineligible when appointed county attorney becomes eligible when she fulfills the residency requirement (RQ-0127-JC)
Dear Ms. McPherson:
You ask whether a person who was ineligible to hold office as county attorney because she had not resided in the county for six months when appointed can be sworn in at the expiration of the six-month period without further action by the commissioners court, or whether the court must take formal action to appoint her when she fulfills the residency requirements. In our view, if an appointment to office is invalid when made because the appointee has failed to fulfill a statutory residency requirement, such an appointment cannot be validated without formally being reconsidered and the vote re-taken by the appointing body.
As you describe the situation prompting your request, the Commissioners Court of Motley County appointed as county attorney a person who, at the time of her appointment, had not been resident in the county for a period of six months. Further, you suggest that when apprised of this, the county judge asserted on advice of counsel that any invalidity could be cured by having the appointee simply wait to be sworn into office until she had been resident in the county for six months.
The Motley County Judge, on the other hand, asserts that these facts are in dispute, that the question of when the person appointed county attorney "established her residence has not been settled," and that there are "many. . . factors . . . a judge could use to clearly decide" that the person in question was in fact "a resident of Motley County, Texas at the time the Motley County Commissioners appointed her the Motley County Attorney." Letter from Laverna M. Price, Motley County Judge, to Honorable John Cornyn, Attorney General, (Jan. 25, 2000) (on file with Opinion Committee).
The question of whether any particular person is eligible or ineligible on the basis of residency to serve in an office requires the resolution of questions of fact, an activity in which this office does not engage in the opinion process. We will therefore assume as an hypothesis for the purpose of your inquiry that the person in question had not resided in the county for six months at the time of her appointment. We caution, however, that such an assumption is in no way a decision by this office as to the facts of the particular case.
Pursuant to section
You ask in effect whether such an invalid appointment could be cured by having the county attorney sworn in only when she had in fact been resident in the county for six months. In our view, the language of the statute answers your question in the negative. To be eligible, the appointee must have resided in the county for six months as of "the date the appointment is made." Tex. Elec. Code Ann. §
We note, however, that the question of a public official's right to hold his or her office is generally not subject to collateral attack. It has been said that "the only situation in which a public official's office can be challenged in an action other than a quo warranto proceeding is where a violation of the Open Meetings Act is asserted." Rivera v. Cityof Laredo,
Following Rivera, then, it is our view that, should the facts be as you aver, the county attorney's right to office is subject to challenge only by quo warranto proceedings. Should her appointment be invalid, her acts in office would likely be held valid by a court under the de facto
officer doctrine. We note further that a de facto officer is entitled to payment for services rendered, though not for services not rendered.Harris County v. Hunt,
The general remedy for the holding of public office by an ineligible person is a quo warranto proceeding. A public official's right to office is not ordinarily subject to collateral attack. The acts of such a public official may be valid under the de facto officer doctrine. A de facto officer is entitled to compensation for services rendered, and accordingly the Motley County Attorney, whether qualified or not at the time of her appointment, is entitled to such compensation.
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General — General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
James E. Tourtelott Assistant Attorney General — Opinion Committee