         OFFICE OF THE AlTORNEY GENERAL          OF TEXAS
                           AUSTIN




Bon. J. Y. Boyd
COuntyAuditor
Lubbook County
Lubbook, Texea
Deer Sirl
                                            i'
                             opinion BO. O-2944
                             Rer Appgiotment of a dopnty.,.~,
                                   l+b*afiy    end eerrlrt~t.

thie   Department upon the


       another   per8on;A.e L%$rariti.whd$ad   no orrtifloete    from the
                                                             Auditor have




                           suoh eeafstent?"




       Librarian who shell hold office  for a tenu of tro (8) years
       subjeot to removal ror oauae after e hearing by said Court.
       No person shall be eligible  to the office    of County Llbrerien
       unless prior to his appointment he has reoelved rrom the
       State Board of Library Exemitn@Tl a certificate    oi qualifioa-
       tion for oftioe;  and when any OOuuty Librarian hee heretofore
Eon. J. Y. Boyd, pegs I!


     *received a certificate    of quelifioatlon     for office    from
     State Board of Library Examiners, and has served as
     County Librarian for any oounty In this State, said
     Librarian may be employed or reemployed by any oounty
     es Librarian wlthout further examination and issuance
     of Oertifioete   from raid State Board of Library Examiners.
     The County Librarian shell,    prior to entering upon the
     duties of hia office,   file with the County Clerk the
     offiolal   oath end meke e bond upon the felthiul        perfor-
     menoe of hi8 duties with suffiolent       sureties  approved
     by the County Judge of the county ot whioh the Librerian
     Is to be the County Librarian,     in suah sum es the Commlrr-
     sioners Court may determine.”
           Article   1684, Vernon’s   Civil   Statutes,   provldee:
             *The salary of the librarian   and assistants  shell
     be fixed by said oourt at the time they fix the salary
     or the appointire     county ofricers.  The oounty llbrerlen
     and assistants    shell be allowed aotuel and nsoeseery
     traveling   expensma inourrsd in the business of the library.”
           Arti      1085, Vernon’s   Civil   Stetutes,   provides :
             “The librarian    shell endeavor to give an equal and
     oomplete service to all parts of the county through brenoh
     libraries   end deposit stations     in schools end other loaa-
     tions where suitable      quarters may be obtained,     thus dir-
     trlbuting   printed matter, books, and other eduoetional
     matter es quiokly es oiroumstanoes will permit.          The
     county librarian     shall have the power to make rules and
     regulations    for the county free library,     to establish
     branohes end station8 throughout the county, to determine
     the number and kind of’ employees of such library,         end,
     with the approval of the oommissioners’ oourt, to eppoint
     and dismiss suoh employees.        The county librarian    shall,
     subject to the general rules adopted by the oommirsioners*
     court, build up end manage according to eooepted rules
     of library management, a library       for the people of the
     aounty and shall determine what books and other library
     equipment shall be purohesed.”
Hon. J. Y. Boyd,   page 3


              Your attention    is oelled to the provision in tha
first 'statute quoted above that "No person ahell be eligible
to the offloe    of County Librarian unless prior to his eppoint-
ment he has received from the State Board of Library Examiners
e oartifioate    0s qualiricetion     for 0triOel . . .-
             Title 33 of our atetutes containing      the above
ertiolea   end from which the oommiaaionora~ oourt receives
its authority and la authorized to oraata,        meintein end
operate county free librariaa,       also creates the Stats Board
of Library Exeminera.      Xhlle the law grants to the oomai8-
aionerat   court the authority to operate and meintein        the
libraries,   creating the office    of oounty librarian    with
power in the oommiaaionara * oourt to appoint a person to
riii that 0rfi08, this power la expreealy limitad in the
reapeot that auoh person, prior to hia appointment, end es
e condition of eligibility      to hold the offioe   muat here
received a certifioate     of qualification    for the offiae    from
the State Board of Library Examiners.
             It will be noted that Art1oJ.e 1634, arpre, requires
that the salary of the librarian        end aaaiatent shell be fixad
by the oommiasionera~ court et the time they fix the aeIeriaa
0s the appointlYe oounty orfioera.         The oommisalonera~ oourt
w8ul.d have no euthority     to fix tha ael.ery of en IneIigible
parson ae county librarian,       end it would neoeaaerily   follow
thet auoh ineligible    person, ocoupying the position      of oounty
librarian,   could not legally     reoeive  the salary whioh ettaohaa
to the ofrioe,    the ruIrilling    0s whloh is conditioned   upon ona
being quellfled    and el1gibla    at the time ,of the appointment.
           This brings us to your seoond question which aon-
oarne the temporary appointmant of an eaaiatent       librarian    to
serve In the oapaoity of librarian   under the fact.8 outlined.
Tha oommiesloners~ oourt is a oourt of limited juriadiotion
end powers and Its authority   to appoint en eaei8tant librerlen
under the facts a8 stated must naoeaaarf~      be axpreeaad Or
implied from the statutes quoted.    The only expressed power
given to the court oonoerning en eaeiatant     librarian     is that
0s fixing his salary.   The court is further expraaaly granted
authority to a_cprwe the appointment of library       employear nude
by the oounty librarian  and approve any diamiasel of sunoh
employees by the county librarian.     AR eaaiatent     librarian,
Eon. J. Y. Boyd, page 4


working under the supervision   and oontrol of the oounty
librarian,  la an employae within the meaning of the term
~amployses of such library*   es ueed in Article 1683, aupre.
             We are unable to reoogniae 'any     implied authority
on the pert of the aommiasionera 1 oourt to       appoint en eaaia-
tent librarian   from the language of these      statutes.    suoh
power to appoint employees or en eaaietest         librarian is
lxpreaaly vested by stetuto in the bounty        librarian.    The
oommissioneral court merely approvea auoh        appointments.
             In the oeae of Waapar vs. Stewart, 66 S. W. (8d)
818, the court held that the word wesaiatantn es used in
lear authorizing    en assistant to the oounty superintendent,
neoesaerily    implied that duties were to be performed in
conneotion with, end under the diraotion      of the auparinten-
dent.   The language of the atetutea involved in this case
wee stronger for implying authority in the oommiaaionera~
aourt  to employ or appoint ~JI aaaiata.nt  then in the above
statutes.

              In aocordenoe with the views expressed,           it la
therefore    the opinion of this Depertmant that the oommia-
@loners' court has no euthority          to appoint a person oounty
librerien    who does not have a OartifiOat8         ee required    by
Artiole    1688.    It naturally    followa that a person appointed
to the offioe      of county librarian     who la ineligible      to hold
that office     may not legally     demand the selery'etteohed       to
said office.       It la presumed that all publi,o orfioara         will
perform    their duties in eooordenoe with law,           In the instant
case, the law presumed that the Commlaaione~aE Court of Lub-
book county will not appoint to the ofrice            of oounty librarian
any person who is, under the plain provisions             of' the statute,
ineligible     to hold that office.       Therefore,   we do not deem it
necessary to categorioelly         enawar thet pert of your first
question relating       to your euthority    to approve a warrant drawn
on the oounty treasurer in payment of the salary of auoh
inaligible     offioar.    In this conneotion,      we invite your etten-
tion to the provision       found in both Artiolaa      1988 end 8340,
R. C. S.,    whiah    must be  incorporated   in  the  oftioiel    bond Of
e oounty judga or county oommiaaionar:ea one of the oonditions
thereof,    end is as follows:        *. t . that he will not rote or
give his oonaent to pay out oounty funds except for lawful
purposes .*
                                                                   632



Hon. T. Y. Boy4,    page 5


              In answer to your amoon question,     it is~ our
further   opinion that when them ir no qualiried        county
&ibrarian in oharge of a county free library      the oods-
donerat    oourt hae no authority    to appoint an lerlrtant
librarian    to serve in the oapaolty   of oounty llbrarlan.

                                        Tours very   truly
                                    Al?fOHNBY OEBEXAL OF ‘.PEXAS




                   ATTORNEY
                          GXNEF.AL
                                 OF TMAS
