                 TEE      AVTORNEY               GENERAL
                               OF     TEXAS

 QERALDC. MARR                 AusTxNH.TEXAH

A-~~ORNECY
         GSNERAL.

                                                  April    3, 1939

    Ron.‘T. R. Ireel
    Chinty Attbrney
    Weara Cotinty ~'
    *nehens,    Texas
    Dear 811-r                             Opinion-To.     O-497

                                           Rer Whether offldera named in Arti-
                                           .   ale'977, R.C.S., 1925, eleetlve
                                               or eppointlve.
    Your:requeat for an opinion et3 contained in your letter    of March
    9thf to whlch’the above dplnlon number hee been esalgned, has
    received the attention of thla department.   Permit us, therefore,
    to set forth the flret three paragraph6 of y.pur letters    es
    follows 1                                                .~
    *We would like      to have oertaln     information,     aa a ruling   from your
    offloe   involving Artlole      lo.   977, R.C.'a., 1925, relative
                                                                t.0 the
    oleotlon  of -City RershQl, City Attorney,  6td., of Cities end
    Tome operating under’haptere    1 end 2, Title 28, Wder the
    follorlng  etete of feoter
    ‘All  of the offlcere of the Cltiee end-towns in question,   exoept
    the Mayor end members of the City counoll,   have been heretofore
    appointed by the Mayor end City Counoll.
    “Queetioni     Where there la no demand or petition     to the         Mayor end
    City Counoil to pleoe the names of parties      on the tioket           fol’
    eleotlon    to the place8 of City Attorney,   Oity.~ershell,           eta., 1s
    it neoeaeery for them to fill     such pleoes by en eleot%on            where not
    petitioned    for, or may they oon#nu6    to appoint them ae.          they have
   .heretofore,    rithin,their dleoretlon.n
    The ebove   erfiole    977, Revised     civil-atetutee     1925, reads   a8
    f~ollows : _                                   .

   ‘“The municipal    government of the olty ehell ooneiet of e city
    counbll oompoeea of the mayor enatwo aldermen from eaoh nerd,
    a majority of whom shell oonetltute     a quorum for the transaction
    6f bueineaa, except et oellea meetings, or meetings for the
    lrapoaltlon of texes, when two-third8    of a full board shall be
    required,   unless otherwise specified,   provided that where the city
    or town la not divided into werde, the city council shall be
Hon. T. 8. Heel, April 3, 1939, Pegs 2, O-497


composed of the mayor end five aldermen, and the provlelone              of
this, title   relating   to proceeding8 'in a ward .ahallapply to a
whole city or town. Other offloere          of the oorporetlon     shell be
e treeatier,     an eases.aor end oollector,    e aecretery,     e city
attorney,    e merahel, city engineer, and such other, offIcera
and agents 88 the olty oounoll may frond time-to time direct.
The office    of treeaurer,   es8esaor aa oolleobor,      oi'ty attorney,
end city engineer may be dispensed with by en ordinance to that
effeot,   end the powers and dutlea herein presorlbed          for such
offloera    may be oonierred by the aounoil upon other officers.
The above named offloers      shall be electedby     the qualified
electors    of 'the city for e term of two years."
 It does not ep'eer from tihe wording of the ebove article        977
 or from its leg f aletlve hletory that the Legislature     intended to
 deny the electorate    the power to elect ,other offloera named end
 that euoh provision be epplloeble    only tp the mayor end aldermen.
 So long ee one or more of the off1098 above created are not
 abolished by ordinance duly enacted, the ‘statute provides In
-unmletekeble language that they be filled     by election.     The fact
 that the city may dispense with one or more of the offloea        named,
 excepting the secretary,    would not necessarily   render inoperative
 the oleer language of the statute ee to lruoh offioea      not dlapensed
 with which portion reader
“The above named offloers  shell be elepted        by the quellflea    eleotore
of the city for e term of two yeem.,?
In tracing the hlr@       of the above rtatute we find name lnoor-
poreted ae Artlole '34 , Revised Clvll Statute8 of Texee 1875,
reading the eubetantielly    the same ee our present ertlole 977
with the exception of the lest sentenoe, whloh prior to the
amendment in 1881, reed et3 follows2
“The above named offloers shell be eleotea by the quellfled
lleotora  of said olty, ee hereinafter $movlaea  for end ahell hold
their off$oee for two years end until the eleotlon   end quelifloetlon
of their auooesaors.”        .
We see, by the above provlslon,    that the lest senta@       of our
present ertIole   hee been e.part of eeld etetute slnoe 1879. We
flnd another provlelon    lnlrez%ed by the amendment of 1881 whioh
ala not exist prior thereto 10 Artlole 34.4 and which amendment added
the following   provision  now e part of our present atetute,       “the
office   of treesurer, essxmaor end oolleotor,     oity attorney and
OIty engineer, may be alepensed with by en ordlnanoe to that effeot,
and the powerr and duties herein preeorlbed      for ruoh,offloere      may
be conferred by the oounoll upon other OfflOers."         tile   lest
lheertlon,   however, we etteoh velry little   import&e.       We do attaoh,
    .




Hon. T. H. Neel,      April   3, 1939, page 3, O-497



however,     a great deal of weight to the ommission In the last
sentence     by the Legislature in 1881 of the words:
"And until     the election   end quelIflcstIon    of their     successors."
Prior to the amendment of 1881, as found In our Article        977, it
was only possible    to fill  a vacancy In any of such offices    named
by special election.      The %gIsleture,   however, by Acts of 1887,
enacted our present Article     989, Revised Statutes 1925, which
contains the following provisions;
"In case of a vacancy in any other office   in the city,  the mayor
or acting-mayor shall fill  suohvecancy   by appointment, to be
confirmed by the city council."
We ere unable  to find any authority in our statutes granting the
mayor and aity council of cities   end towns operating under
Chapters 1 and 2, Title 28, Revised Civil Statutes of Texas, power
to appoint persons to the off1ce.s named in Article   977, Revised
civil statdtes     1925.

It is, therefore,    the opinion of this Depertment.'that such officers
named In Article    977, Revised 6lvIl'Ststutes     1925, and whose
office   has not been dispensed wlth~~~rmvlded       therein,  shall be
elected by the qualified     electors  and that in the event that no
qualified   person 1s nominated or elected to an office       at the
election   so held, s vacancy will be deeed         and asme filled  as
provided in Article    989, Revised~efrril   Statutes 1925.
Trusting     the above answers your question,       we remain
                                      Very truly   yours
                                 ATTORNEY
                                        GENERAL
                                              OF TEXAS
                                 s/ Wm. J. R. King

                                 BY          Wm. J. R. King
                                                  .Asgist.ant
WmK;AW/cg
APPROVED:
S/ Gerald C. Mann
ATTORNEY GENPRALOF TEXAS
