Untitled Texas Attorney General Opinion ( 2000 )

March 9.2000
The Honorable Becky B. McPherson Opinion No. JC-0191
District Attorney
110th Judicial District Re: Whether a person who was ineligible when
Floyd County Courthouse appointed county attorney becomes eligible when she
P.O. Box 10 fulfills the residency requirement (RQ-0127-JC)
Floydada, Texas 792350010
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 offtce 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 Lavema M. Price, Motley
County Judge, to Honorable John Comyn, Attorney General, (Jan. 25,200O) (on tile 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 Honorable Becky B. McPherson - Page 2 (JC-0191)
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 141.001 of the Election Code, “To be eligible to be appointed to, a
public elective office a person must have resided continuously . in the territory from
which the office is elected for six months immediately preceding the date the appointment is
made .” TEX. ELEC. CODE ANN. 5 141.001(a)(5)(E) (V emon 1986). The office of county
attorney is a “public elective office.” TEX. CONST. art. V, 5 21. Accordingly, this office has ruled
that to be appointed county attorney, “a prospective appointee must have been a resident of the
county for six months immediately preceding the date of his or her appointment.” Tex. Att’y Gen.
LO-95-086, at 1. An attempt to appoint as county attorney a person who did not fulfill this residency
requirement would therefore be invalid.
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 ofthe 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. 5 141,001(a)(5)(E) (V emon 1986). “Appointment” here is clearly the nomination.
When, as in this case, a term is undefined by the statute, we are charged to give it its ordinary or
common meaning. See TEX. GOV’T CODE ANN. 5 311.01 l(a) (Vernon 1998). “Appointment,” in
this sense, is defined by the Oxford English Dictionary as “[t]he action ofnominating to, or placing
in, an office. .” I OXFORD ENGLISH DICTIONARY 579 (2d ed. 1989). If the only “appointment”
occurred on a date certain, when the candidate did not meet the residency requirement, it will remain
the case that as of that date the requirement cannot be met. The putative fact at issue-namely, that
a particular person had not maintained a particular residency for six months preceding a particular
date-is unchanging. An effective appointment at a later date when the candidate satisfied the
residency condition, therefore, would require formal reconsideration and action by the
commissioners court.
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 warrant0 proceeding is where a
violation of the Gpen Meetings Act is asserted.” Rivera v. City ofLaredo, 948 S.W.2d 787, 791
(Tex. App.-San Antonio 1997, writ denied). In Riveru, plaintiffs challenged employment actions
taken by a person who had been appointed police chief of Laredo, Texas in a city council meeting
which plaintiffs alleged violated the Open Meetings Act. While the Court of Appeals held that the
Open Meetings Act permitted this collateral challenge, and indeed found that the individual’s
“appointment as police chief is void,” id. at 793, it did not invalidate the employment actions he had
taken as chief, on the grounds that he was the chief de facto. Id. at 794. As the opinion explains,
a public official is a de facto officer when, inter alia, he acts “under color of a known election or
appointment, void because the of$cer was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or irregularity in its exercise, such
The Honorable Becky B. McPherson - Page 3 (JC-0191)
ineligibility, want of power, or defect being unknown to the public.” Zd. (quoting Forwood v. City
of Taylor, 208 S.W.2d 670, 673 (Tex. Civ. App.-Austin 1948, writ denied) (emphasis added)).
Following Riven, 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 fucto
officer doctrine. We note further that a defacto officer is entitled to payment for services rendered,
though not for services not rendered. Harris County Y. Hunt, 388 S.W.2d 459, 465 (Tex.
Civ. App.-Houston [lst Dist.] 1965, no writ). Accordingly this office in Attorney General Opinion
JM-989 (1988) concluded that the Comptroller ofPublic Accounts might pay avisiting judge whose
appointment was improper, but who had sat and rendered service. Tex. Att’y Gen. Op. No. JM-989
(1988). Whether or not the hypothesis that the Motley County Attorney was ineligible at the time
of her appointment is correct, therefore, she is entitled to compensation for services rendered.
The Honorable Becky B. McPherson - Page 4 (JC-0191)
SUMMARY
A person who has not resided in a county for six months
immediately prior to her appointment as county attorney is ineligible
for that office. Should the commissioners court wish to confirm such
a person in the office to which such original appointment was invalid,
it may do so only by a formal repetition of the appointment at such
time as she is eligible for office.
The general remedy for the holding of public office by an
ineligible person is a quo warrant0 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 defacto 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.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee