                    THE     ATTORNEY                GENERAL
                                  OF TEXAS
                                                             February    1, 1939
Gerald   C.                      AUWI-IN   11. m
                        ,


    Hon. Y. A. (Bill)       Morrison        opinion Ho. 181
    Criminal  Dlstrlct      Attorney        Bec Legality    of vacancy appolnt-
    Milam county                            ment of non-resident    of Cameron
    Oameron,Texas           -               to the office   of City Attorney.
    Dear Mr~. Morrison:
                By your inquiry inder date of January 17 1939, you
    seek the opinion of this Department upon the legality       of the con-
    templated   appointment   by the Mayor and City Council of Cameron,
    to the office    of City Attorney,   of an attorney who does not~live
    within   the corporate  limits   of said city.
                 You append to your letter   of inquiry    certain   statutes
    of Title 28 of the Revised Statutes,      applicable    to municlpalltles
    operating    under the general   law and having the aldermanic       form
    of government;     hence for the purposes of this opinion       we shall
    assume that the City of Cameron is existing        under tha< form of.
    government,     and your question will be determined     by statutes      per-
    taining   thereto.
                 Article     977, Revised Civil     Statutes    protildes for the
     governing   officials      of guch municipal    corpora 4 ions and constitutes
     them elective     offices.
                  Article   989 Revised Civil Statutes,        provides  for the
     filling   of vacancies    in the office    of mayor or alderman by special
     elections    and other statutory    offices,    lncludlng    that of city
     attorney,    by appointment.     In respect   to such appointment,      said
     statute   provides,    In part, as r0ii0wst
                    nIn case of a ,vaoancy in any other office   in the
              city,  the mayor or acting mayor shall fill    such vacancy
              by appointment,  to be confirmed by the city coun~ll.~,
                 The foregoing     statute     embraces vacancies       arising    from
    whatever cause      including     resignations,      as In the instant        case
    State ex rel &gsbury          v. Brinkerhoff,       17 S.V. 109.       ConsequenCly,
    the Mayor and City Council of Cameron are properly                  proceeding,
    onder said statutory       authority,      to fill   the vacancy Ln the ‘office
    of City Attorney by ap ointment.             The only difficulty         confronting
    them is the residentda~ P requirements            or qualifications       for the
    office    of City Attorney,      embodied in Article        1003, Revised Civil
    Statutes,    1925, as fol1owsi
Ii&.    W. A.(Blll)    Morrison,      page 2     (181)

                 Wo person other than en elector   resident  of the
        “,;z,;t;$l    be appoint ad to any off ice by the city

               The question presented   by the application                  of the    fore-
going    statutes   to your inquiry   is thus posed,
              Is   a vacancy   appointment       of a city       attorney     &I
        Council,   under
        tantamc iunt to or equivalent          to the    appointment        of such

        requirements    of the     iatter    Article     applicable?
             If an affirmative      answer to the above question        is war-
ranted,   the residential     requirements    of kticle     1003, Revised Civil
Statutes,    will prevent the appointment       to the offior      of oity attor-
ney, of any lawyer who does not live within           the corporate limits      of
the City of Cameron.       If, on the oontrary        there ia a valid di8-
tinctlon    to be &awn between appointment        to thla offlor &y the rp~pp~,
u on confirmation      by City Council,    within the language of 4rtiole
919, on the one hand, and appointment to this offloa
CLpuncil within the meaning of Article         1003, Raviard     C
on the other hand, then the oontemplated          appointment      in thia ease.
is auat ainablr .
             Whilr thla quratioa        is aot without         diffioulty,     it ia our
oonolusion     that the foregoing       question      ahould ba umorqd           in the
affirmative.       4ny other oonstructioa          of Artlola       1003, Rrviaad Civil
Statutoa,    would rondrr it, ‘for all practical               purpoaaa,     a nullity
and defeat the palpable purpoor or tha Leglalatura                      to rrquiro all
mun1olpal offloara to be rraidrata of the munioipality                       in question-
Artiolo 2927, Raviaad Civil statutea,               1925, ia a gomr11 atatuto
govrrnln     tha eligibility      of olootivr       Bteta,      a@u&aty, prroiaot      and
muniolpa f offioara,       and aa to the latter           roquiroa      rrtldraor la thr
municipality      involved,     kctiolr     987 Rwiscld Givil Itatutaa               1925,
provider that no parroa ahall be rlkgibla                 to tha offioa of Mayor
or rldarman,      unlaaa ha hra roaldrd ior a oertaia                 orlod within      tha
oity Unita*         48 WI have herrlnabovr rhmm, Art10Po 1003, Rovlaod
Civil Btatutea        1929, requirea      that no parson ahell bo a polatrd
to my offlor       by tha oity oounoil unlraa ha raaidra                 with Pa the oor-
  orate limit8     of the oity ia quuration. Aeiola 989 Wovlmd OLvil
titatutor    1929, undar whioh thr appolattnrat in thla’oaar                   La aado,
ia’ ailenk~ aa to raaidratial         quallfioationa,        but WI aubmit that in
tho abaonor of an rxprraa provirion in auoh atatuta allowiag                         the
appointment      of non-reaidmtr,       we are not juatifled in aaoribing                 to
thr Leglalaturr       an Mont     to orratr       in thia one inatanor         an rxoep-
tioa to ita unlvrraal        polloy of requiring          muniolpal ofrioara to be
resldonta     of the oity whloh they are               ol8otod   to aorva~
Hon. W. 8. (Bill)        Morrison, page 3      (181)


              Moreover,     it is our conclusion        that the vacancy appoint-
ments by the myor with confirmation               by the city council,        in accord-
ance with Artlolr        989, Revised Civil Statutes,           1925, should, under
reasonablr     statutory      oonatruotlon    and the authorities          be deemed
an appointment       by ‘the city ~oouncll       so as to bring into operation
the resldontial       rrqulroments       of A&o10 1003, Rovlsed Civil Stat-
utes,    because “oity council*          is by statutory     drfialtion     in Article
977 Revised Civil 8tatutrs,              1925, and under ~the common acception
of the term, oomposrd of the mayor .and aldemOn.                     Vacancy appoint-
ments are made by the “city counoll~~ in this aonso of the term, and
are not made by the mayor alone or by the aldermen alone.                       The      +
power to appoint said ~offlcers under Article                989 Revised Civil
Statutes      192!i, 1s not absoluto        in tho mayor, bu 4 oonditional          upon
its oonf&aatlon         by tho city oouncll.
            This conclusion       finds support In the decisions        of this
and other statos,     holding,      in princlplr,   that where the power of
appointment   Is absolute      and the appointee     has been determined      upon,
no further   consent or approval is necessary,           and the appointment
may be conslaored     as made, but where the assent          or confirmation     of
some other officer     or body la requlrod        the appointment     can be
complete only when such assent or conffrmatlon             is obtained,     because
It is not until    then that the last act required           of the appointing
power is performed.       Brumb v. Boyd, et al          66 S.W. 874. Mechem,’
Public Offices,    Section     11 2: and cases cited.
               In the case     of Brumby v. Boyd supra,        the municipal      char-
ter    under   consideration     provides as foliows*
              “In case    of a vacancy in any elect ire 0fri00,
        from whatever     reason,   the council,  upon nomination
        by the mayor,     shall fill   the vacancy by the solec-
        tlon of soae     porron by a vote of a majority    of the
        aldermen elect    ad ana qualiz lea. 11
              With referoncr  to whether this charter provision  confer-
red    the power of appointment   upon the mayor or upon the city coun-
cil,     the court had thfr to say,
                We think it is clear from the language of the
        chartor   abwo quotod that the mayor has no authority
        to fill   a vaoanoy in an elective     offior,  and that such
        authority    ia Vested rolely in the olty oounoll.       Pho
        selection    of the person to fill    such vaoanoy must be
        by the council,    which Is composed of the mayor and
        board of alarrum.       Neither  can act in the matter in-
        dependent of the other,      and no legal appointment     tem-
        porary or otherwise,     can be made unless ooncurra (I in
        by both the mayor and a majority       of the board of alder-
        men. Tho nomination      by the mayor Is only the initial
.


    Hon. W. 4. (Bill)    Morrison,   pa%! 4      (181)


         step W-making the appolntmtint,   ‘and the appoint-
         ment .becomos. complete only when Cohcurred in by
         a majority   of the aldormon.   M&hem, Pub .orr .
         Par. 114, . .'I
                 Under this authority,    wo believe     the word “appointtient”,
    as. employed in Article     989, Revised Civil Statutes,        must be con-
    strued to mean nselectlon”       or %omlnatlon”      by the mayor, and that
    the appointment     is only complete when such seltiction         or nomination
    Is confirmed by the city council.         It necessarily     follows that the
    appointment    to fill  the vacancy in the office        of City Attorney of
    Cameron is governed by the residential         requirements     of Article
    1003, Revised Civil Statutes        and that no attorney      who lives beyond
    the confines     of the City of &meron can legally         be appointed    to
    this office.
                                        Yours very       truly
                                         ATTORNEYGBNERALOF TEXAS
                                        By /s/       Pat M. Neff,   Jr.
                                         Assistant
    PM?:N:wb
    APPROVEiD
    /s/ Gerald C. Mann
    ATTORNEYGENERRQL OF TEXAS
