                                        November    10, 1999



The Honorable Thomas B. Sehon                      Opinion No. JC-0140
Falls County District Attorney
P.O. Box 413                                       Re: Whether a commissioners court is required
Marlin. Texas 76661                                to fill a vacancy in the office of constable, and
                                                   related questions (RQ-0060-JC)


Dear Mr. Sehon:

        You ask whether a commissioners       court is required to till a vacancy     in the office of
constable. We conclude that it is not required to do so.

        You indicate that a Falls County constable, who assumed office in 1997, subsequently
announced his candidacy for, and was elected to, the position of school district trustee. Since more
than one year remained of his unexpired term as constable, he is deemed, under article XVI, section
65, of the Texas Constitution, to have resigned the constable’s office. See TEX. CONST. art. XVI,
5 65. To date, however, the commissioners court has not appointed a successor, and you inform us
that, under article XVI, section 17, of the Texas Constitution, the former constable “has continued
and is continuing to perform his official duties.” Letter from Honorable Thomas B. Sehon, Falls
County District Attorney, to Office of the Texas Attorney General (Apr. 26, 1999) (on file with
Opinion Committee). You ask whether the commissioners court is required to till the vacancy.

         Section 87.041 ofthe Local Government Code, provides that “[t]he commissioners court of
a county may fill a vacancy in the office of,” inter alia, “justice of the peace [and] constable.” TEX.
Lot. GOV’T CODE ANN. 5 87.041(a) (Vernon 1999) (emphasis added). “The person appointed by
the commissioners court to till the vacancy shall hold office until the next general election.” Id.
5 87.041(c). In Attorney General Letter Opinion 98-037, this office said that a commissioners court
is required to fill a vacancy in the office of justice of the peace. That decision was based on the
declaration of article V, section 28, of the Texas Constitution, that “vacancies in the office of County
Judge and Justices of the Peace shall be filled by the Commissioners Court until the next succeeding
General Election.” TEX. CONST. art. V, § 28 (emphasis added). Both Letter Opinion 98-037 and the
two opinions on which it relied, Attorney General Opinions WW-279 (1957) and V-178 (1947),
construed the constitutional “shall” language as imposing a mandatory duty. No such constitutional
requirement is imposed on a commissioners court to fill vacancies in the office of constable, and in
 its absence, section 87.041 provides the only authority for tilling a vacancy in that office. As you
 suggest, the word “may” ordinarily confers discretion. This result-that       a commissioners court has
 a mandatory duty to fill vacancies in the office ofjustice of the peace, but has discretion to till, or
The Honorable Thomas B. Sehon - Page 2               (JC-0140)




not fill, vacancies in the offtce of constable - seems absurd, and, in our opinion, it calls into
question the very validity of the use of the “shall/may” dichotomy in the context of tilling vacancies
in public offices.

         Under the terms of the Code Construction Act, “‘may’ creates discretionary authority or
grants permission or a power,” while “‘shall’ imposes a duty.” TEX. GOV’T CODE ANN. 5 311.016
(Vernon 1998). In both cases, however, such constructions apply “unless the context in which the
word or phrase appears necessarily requires a different construction or unless a different construction
is expressly provided by statute.” Id. This rule of statutory construction, first enacted into statute
in 1997, is more or less a codification ofcase law on the distinction between “shall” and “may.” See,
e.g., Lewis v. Jackxmville Bldg. & Loan Ass’n, 540 S.W.2d 307 (Tex. 1976); Znwood N.
Homeowners’Ass’n v. Meier, 625 S.W.2d 742 (Tex. Civ. App.-Houston [lst Dist.] 1981, no writ).
On the other hand, courts have also said that “may” and “shall” are often used interchangeably.       See
Burton v. M&&ire, 3 S.W.2d 576 (Tex. Civ. App.-Beaumont              1927), af’d, 41 S.W.2d 238 (Tex.
Comm’n App. 1931, judgm’t adopted); Kessler v. Texas Employers Ins. Ass’n, 421 S.W.2d 133
(Tex. Civ. App.-Eastland      1967, writ ref d, n.r.e.); Smith v. Curtis, 223 S.W.2d 712 (Tex. Civ.
App.-Dallas 1949, no writ). Whether either term is to be construed as mandatory or directory
depends upon context. See Chisholm v. Bewley Mills, 287 S.W.2d 943 (Tex. 1956); Thomas v.
Groebl, 212 S.W.2d 625, 630 (Tex. 1948); Brinkley v. State, 320 S.W.2d 855 (Tex. Crim. App.
 1958); Serno v. Enriquez, 545 S.W.2d 281 (Tex. Civ. App.Xorpus          Christi 1976, no writ).

         Article V, section 28, of the Texas Constitution, as we have noted, specifies that “vacancies
in the office of County Judge and Justices of the Peace shall be filled by the Commissioners Court
until the next succeeding General Election.” TEX. CONST. art. V, 3 28. While this language could
be interpreted to require the commissioners court to fill these vacancies, it may just as reasonably
be construed to mean that, if they are filled, the commissioners court is the proper appointing
authority and, in addition, that no special election may be held to fill such vacancies. By contrast,
section 87.041 ofthe Local Government Code, provides that “[tlhe commissioners court. . may fill
a vacancy in the office of. . . justice of the peace or constable,” but also declares that “[tlhe
commissioners court shall fill a vacancy by a majority vote of the members of the court who are
present and voting.” Tnx. LOC. GOV’T CODE ANN. $87.041(a), (b) (Vernon 1999). In our opinion,
the proper way to harmonize these constitutional and statutory provisions is to conclude that,
whether “may” or “shall” is used, the commissioners court is not under a mandatory duty to till any
of the positions in section 87.041.

         We are supported in this conclusion by the absence, in both statute and constitution, of any
specified consequences resulting from a commissioners court’s failure to exercise its power of
appointment.    Other state courts have consistently held that a statute that does not declare the
consequences of a failure to comply should be construed as directory rather than mandatory. See,
e.g., Sullivan v. Credit River Township, 217 N.W.2d 502, 507 (Mime. 1974); State ex rel. Mitchell
v. Heath, 132 S.W.2d 1001, 1003 (MO. 1939). Not only do both the statute and constitutional
provision under consideration here fail to specify consequences, there also appears to be no means
of compelling a commissioners court to exercise its appointing authority.
The Honorable Thomas B. Sehon - Page 3               (JC-0140)




         Mandamus will lie to compel a public official to perform a ministerial act. Turner v. Pruitt,
342 S.W.2d 422,423 (Tex. 1961). We do not believe, however, that the appointment ofthe offtcials
listed in section 87.041 of the Local Government Code, can be said to be ministerial.              As the
Supreme Court said in Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991), “[a]n act is
ministerial 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.” Id. at 793. Both the constitution’s “shall
be tilled” language and the statute’s “may fill” language obviously do not specify the identities of
the persons to be appointed. Neither do they indicate a time frame in which the commissioners court
must make the appointment. Furthermore, both constable and justice of the peace positions require
certain qualifications. The commissioners court might be unable to find an appointee who meets the
requisite qualifications. In any case, it might argue that it was not refusing to make the appointment;
rather, it was merely proceeding cautiously in order to select the best candidate. In short, there is
 simply too great a degree of discretion involved in the matter ofmaking appointments to satisfy the
 exacting standards of mandamus.

        Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981), is one ofthe
relatively few cases in which a Texas court has upheld a writ of mandamus directed to a
commissioners court. There, the commissioners had refused to set a salary for a particular constable.
After reviewing the standard required for mandamus, the Texas Supreme Court concluded that it was
proper in this case because the constitution specified that “it shall be mandatory upon the
Commissioners Courts, to compensate all         . constables     on a salary basis.” Id. at 108 (citing
TEX. CONST. art. XVI, $61). It seems apparent that “it shall be mandatory” is the kind of language
that imposes a clear and unmistakable duty. By contrast, “shall be appointed” and “may appoint”
leave substantial room for discretion. We conclude that, while both the constitutional provision and
the statute contemplate that the offices listed in section 87.041 of the Local Government Code are
to be tilled, the commissioners court is not under a mandatory duty to till them within a specified
period, and, absent unusual circumstances, cannot be compelled to do so. Consequently, Attorney
 General Opinions WW-279 (1957) and V-178 (1947), as well as Letter Opinion 98-037, are
 overruled to the extent inconsistent with the views expressed here.

         We do not mean to imply, however, that unusual circumstances cannever arise. Your second
 question is whether the members of the commissioners court may transgress section 87.013 of the
 Local Government Code by failing to fill the vacancy in the office of constable. Section 87.013
 provides that “an officer may be removed for,” inter alia, “incompetency” or “official misconduct.”
 TEX. Lot. GOV'T CODE ANN. 5 87.013 (Vernon 1999). Incompetency           is defined as:

                 (A) gross ignorance of official duties;

                 (B) gross carelessness   in the discharge of those duties;   or

                 (C) unfitness or inability to promptly and properly discharge official
                 duties because of a serious physical or mental defect that did not exist
                 at the time of the officer’s election.
The Honorable Thomas B. Sehon - Page 4               (JC-0140)




Id. 5 87.01 l(2). Official misconduct is defined as “intentional, unlawful behavior relating to official
duties by an officer entrusted with the administration ofjustice or the execution ofthe law. The term
includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed
on fhe officer by law.” Id. 5 87.01 l(3). A proceeding for removal of a county commissioner is
initiated by the filing of a sworn petition by a county resident. See id. 5 87.015. The county attorney
represents the state in a removal proceeding, and removal may be effected only upon a jury trial.
See id. 5 87.018.

         Because a commissioners     court is not under a mandatory duty to fill vacancies, only
extraordinary circumstances     could warrant the removal of one or more commissioners              for
“incompetency” or “official misconduct.” Although we will not speculate on the full panoply of
circumstances    fhat might be sufficient to demonstrate a basis for removal, we mention two
circumstances that give us pause: If, for example, an incumbent sheriff has died and the resulting
vacancy has led to a general lack of law enforcement in the county; or, again, if the holdover officer
has been the subject of numerous complaints of wrongdoing or allegations fhat he is unfit to hold
the office. In general, however, we believe that such circumstances will be rare and that the evidence
required to effect removal would have to be substantial.

        Finally, you ask whether the commissioners court, and Falls County, incur greater liability
by virtue of the court’s failure to appoint a new constable. The commissioners may raise the
affhmative defense of official immunity to any liability for torts committed by the holdover
constable. To establish the defense, the commissioners must show that failure to appoint a new
constable was (1) discretionary; (2) taken in good faith; and (3) within the scope oftheir authority.
See Fort Bend County v. Heikkila, 921 S.W.2d 395, 398 (Tex. App.-Houston [lst Dist.] 1996, no
writ). As to possible county liability, the Texas Tort Claims Act specifically does not apply to a
claim that is based on “the failure of a governmental unit to perform an act that the unit is not
required by law to perform,” or “a governmental unit’s decision not to perform an act      if the law
leaves fhe performance or nonperformance of the act to the discretion of the governmental unit.”
TEX. CIV. PRAC. &REM. CODE ANN. $101.056 (Vernon 1997).


          On the other hand, a county has been held liable, under civil rights statutes, for the acts of
 a peace officer on the ground that the commissioners court had control of the hiring and training of
 deputy constables through its power to refuse to pay the deputy constables unless they were properly
 trained.   Walsweer v. Harris County, 796 S.W.2d 269, 274-S (Tex. App.-Eastland             1990, writ
 denied), cert. denied, 502 U.S. 866 (1991). Similarly, a commissioners court that was aware ofprior
 torts committed by a holdover constable might conceivably increase its, and the county’s, liability
 by failing to appoint a successor. Again, we will not speculate on the kind of evidence that might
 be necessary to support such a claim. See generally 35 DAVID B. BROOKS, TEXAS PRACTICE:
 COUNTY AND SPECIAL DISTNCT LAW $2.31 (West 1989).
The Honorable Thomas B. Sehon - Page 5           (JC-0140)




                                     SUMMARY

                       A commissioners     court has no enforceable duty to fill
               a vacancy in the office of constable. Attorney General Opinions
               WW-279 (1957) andV-178 (1947), as well asLetterOpinion98-037,
               are overruled to the extent inconsistent with this opinion.




                                            Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
