        Honorable John F. Miller, Jr.    Opinion No.   JR-874
        Criminal District Attorney
        P. 0. BOX 3030                   Re: Qualifications of civil
        Texarkana, Texas   75504         service commissioners
                                         (RQ-1340)

        Dear   Mr. Miller:

            you ask several questions regarding the Fire Fighters'
        and Police    Officers'    Civil Service    Commission   in
        Texarkana, Texas. you indicate that the current chairman
        of the commission served on the Texarkana, Texas, Rousing
        Authority until May,' 1986, and was appointed  to the civil
        service commission approximately   three months later.   In
        addition, one of the other two civil service commissioners
.r      held the office of school district trustee at the time of
        his appointment to the commission in Ray, 1987.

             Roth of     those., appointments were made while   fire
        fighters' and    police officers' civil service commissions
        were governed    by article 1269m, V.T.C.S.  Section 3(b) of
        that statute     set out the following qualifications    for
        commissioners:

                    All such Commissioners  shall be of good
                 moral character,   citizens of the United
                 States, resident citizens of the particular
                 city for which they are appointed,      shall
                 have resided in said city for a period     of
                 more than three (3) years, shall each be
                 over the age of twenty-five (25) years,   and
                 shall not have held anv Dublic office with-
                 in the urecedins three (3) vears.  (Emphasis
                 added.)

        Acts 1985, 69th Leg., ch. 910, 51, at 3046, reDealed bv
        Acts 1987, 70th Leg., ch. 149, 549 (l), at 2544. Current
        law maintains  the same requirements,   but in slightly
        different form. See Local Gov't Code 5143.006(c).

              You first ask whether the underscored   requirement
P, ,.    disqualifies the present chairman of the.commission.   A
        'housing commissioner  is regarded as a public officer.


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Honorable John F. Miller, Jr. - Page 2   (JM-874)




Attorney General Opinion, M-1096 (1972); see also Housinq
    oritv of Harlincen    . State ex rel. VelascueG,   539
S.W.2d 911, 915   (Tex. C‘;v. App. - Corpus Christi  1976,
writ ref'd n.r.e.).     Thus, because  the individual   in
question held public office within the three years prior
to August, 1986, he was ineligible for appointment to the
commission at that time.

     you next ask whether the same requirement   also dis-
qualifies the commissioner who served as an elected school
board member  at the time of his appointment.       Like a
housing commissioner,  a school district    trustee   holds
public office. Attorney General Opinion V-834 (1949); -
w    Educ. Code 523.08 (requiring elections   for trustees
of independent school districts).   Thus, like the former
housing commissioner,  the school board member    was in-
eligible for appointment to the civil service commission.

      Your third question relates to the validity          of
actions taken by a commission during the tenure of an
appointee subsequently   found ineligible.     The identical
question watiresented   in Vick v. Citv f Waco, 614 S.W.Zd
861 (Tex.      . App. - Waco     1981, wryt ref'd n.r.e.).
There, a firemen's   and policemen's civil service commis-
sion had dismissed an officer of the Waco Police Depart-
ment.    The dismissed   officer brought     suit to compel
reinstatement, claiming, inter alia, that the commission's
decision   was invalid because the commission        was not
composed of a quorum of duly qualified commissioners.     The
plaintiff charged, and the court acknowledged, that two of
the three commissioners had held public     office within the
three years preceding    their appointments.     Nonetheless,
the court upheld the commissiongs      order, declaring  that
the challenged    commissioners   were   "de facto members,
acting under the color of authority," and that their acts
were therefore immune from collateral attack.      614 S.W.2d
at 864.

     A de facto officer is one WhOi by his acts, has the
appearance of holding the office he has assumed,   but who
in fact does not validly hold the office. G rm v
&p.g, 222 S.W.2d  172, 176 (Tex. Civ. App. - FzrtanWorth
1949, writ ref'd n.r.e.); atv    of Christine v. Johnson,
255 S.W. 629 (Tex. Civ. App. - San Antonio 1923, no writ).
The designation of "de facto officer" may attach to one         -\,
who holds office .under color of an appointment that    is
subsequently invalidated on the grounds that the appointee
was ineligible. Worton v. Shelby County, 118 U.S. 425,
446 (1886); Ex carte Tracey, 93 S.W. 538, 542 (Tex. Crim.
App. 1905). Acts performed by a .de facto officer under
color af office are considered   valid. Norton v. Shelby.


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     !;ytv,  118 U.S. at,441-42: s       v. Pane, 222 S.W.2d at
           S   aenerallv 39 Tex. Jur. 2d Wuniciual Corporations
     514; anycases  cited therein: 67 C.J.S. Officers 95269-70.

          Here, as in Vick v. Citv of         Waco the challenged
     officers were acting under color of     auth&ity.   Thus, each
     was a de facto officer, and "as         such his acts are as
     binding as though he was an officer     de jure." Shriber v.
     Culberson, 31 S.W.2d 659, 661 (Tex.     Civ. App. - Waco 1930,
     no writ).

          your fourth and fifth questions relate to the proce-
     dure for removal of the officers in question.. was noted by
     the court in Vick     Citv f wacp    614 S.W.2d at 864, a
     guo warrant0 proceeding  is"the e&clusive remedy to test
     the right of an officer to hold office. An action in quo
     warrant0 may be initiated by the Attorney General   or by a
     county or district attorney.    Civ. Prac. and Rem. Code
     566.002. If the court finds that the subject of the
     action holds office unlawfully,  the court may remove the
     individual from office, charge him with the costs of
     prosecution, and impose such fine as the court deems
     appropriate.  Civ. Prac. and Rem. Code 566.003.
,-
                              SUMMARY

                   Section 3(b) of former article   1269m,
              V.T.C.S. (now section 143.006.of the Local
              Government Code), provides that an appointee
              to a Fire Fighters' and Police Officers'
              Civil Service Commission must not have held
              public office within the preceding     three
              years. That provision rendered    ineligible
              both (1) an individual who had recently
              served on a municipal housing authority: and
              (2) an individual who had recently been
              elected to a local school board.

                   Acts‘of. de facto officers are valid.
              An action in guo warrant0 is the exclusive
              remedy to: challenge an officer's right to
              continue to hold office.




                                           JIM.    MATTOX
                                           Attorney General of Texas




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Honorable John F. Miller,   Jr. - Page 4   (JM-874)




MARY   KELLER
First Assistant Attorney General

Lou MCcREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLJ?.Y
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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