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        Honorable Jack N. Fant       Opinion No. C-452
        County Attorney
        El Paso County               Re:   Whether, upon resignation of
        El Paso, Texas                     the present County Judge, an
                                           incumbent County Commissioner
                                           may tender his resignation
                                           and thereupon be appointed
                                           County Judge by other County
                                           Commissioners acting as the
                                           Commissioners Court, Andy
        Bear Sir:                          related question.
                  Your request for an opinion on the above-captioned
        matter reads as follows:
                 "The Commissioners Court of El Paso County,
            Texas, with the exception of County Judge Glenn
            E. Woodard, on the 20th day of May, 1965, requested
            that I obtain your department's opinion on the
            above stated questions. Their request states as
            follows: 'Inasmuch as County Judge Glenn E.
            Woodard has announced that he will resign his
            post as County Jud e of El Paso County on or
                              f! and inasmuch as County
            about July lst, 19.5;
            Commissioner Tom Mays has been unanimously
            selected by his fellow Commissioners to succeed
            Judge Woodard as County Judge, and has indicated
            that he will resign his commission as County
            Commissioner at that time, the El Paso County
            Commissioners Court hereby respectfully requests
            that you obtain from the Attorney General of
            the State of Texas an opinion as to the legality
            of Commissioner Mays' succeeding Judge Woodard
            as County Judge of El Paso County.' The foregoing
            request of me for an opinion was signed by all
            four County Commissioners of El Paso County,
            Texas, Including Tom Mays, County Commissioner
            of Precinct No. 4.
                  "Before setting out my brief, authorities
             and conclusions herein on these matters, it is
             first necessary to furnish you with the pertinent
             facts surrounding the question or questions                   .

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Hon.'Jack N. Fant, page 2 (C-452)


    involved. Approximately ten days ago our
    incumbent County Judge, Glenn E. Woodard,
    through various news media, announced, and
    it is a matter oftcommon knowledge, that he
    intends and will resign his post as County
    Judge of El Paso County, Texas, on or about
    July 1, 1965. The senior Commissioner of
    this County, who has held this post for
    approximately eight years, Is County Commis-
    sioner Tom Ways of Precinct No. 4. Judge
    Woodard, having made his announcement that
    he will resign on or about July 1, 1965, the
    Commissioners Court has met on at least two
    and I think three occasions and have decided
    to unanimously select Mr. Ways as a successor
    to Judge Woodard as County Judge.
         "Upon receipt of the formal request by
    the Commissioners Court for this opinion,
    which was in writing, I asked to have an
    audience with them, which I did, however
    Judge Woodard was absent but all four
    Commissioners attended. At this meeting
    I asked the County Commissioners if Judge
    Woodard Intended to resign first at the
    same meeting and then upon his tender of
    resignation and the acceptance of the same
    by the Court, if they intended then to
    appoint Commissioner Mays to this position.
    My answer was 'yes' from the Commissioners.
    I explained to them that perhaps if I
    predicated this opinion purely upon this
    point that It might be necessary in the
    future to obtain an opinion as to whether
    or not Mr. Mays might resign prior to
    the time that Judge Woodard resigned and
    have his vacancy filled, then attempt or
    desire to be appointed to the County
    judgeship, all of this assuming that It
    would be at the.ssme meeting of the
    Commissioners Court on or about July 1,
    1965. The Commissioners then after some
    discussion and my explanation evidenced
    an intention that I also obtain an opinion
    as to the latter question.
          "I therefore respectfully request your
     department's opinion upon the following two
     questions:

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Hon. Jack N. Fant, page 3 (C-452)


          (1) Whether, upon the resignation of the
          County Judge of El Paso County, Texas, an
          incumbent County Commissioner, in this
          instance County Commissioner of Precinct
          No. 4, may then tender his resignation
          and thereupon be appointed County Judge
          by other Commissioners acting as a,
          Commissioners Court, this assuming that
          the Commissioners Court has accepted the
          resignation of the County Judge and a
          vacancy has been created.
          (2) Whether the incumbent Commissioner,
          that Is County Commissionersof Precinct
          No. 4 of El Paso County, might resign his
          present post at the same meeting and his
          successor be named by the County Judge,
          and then the incumbent County Judge tender
          his resignation and the same be accepted
          by the Court, and this having been done
          the Court appoint the former Commissioner
          of Precinct No. 4 as County Judge of
          El Paso County, Texas."
          The first question has been considered in two
previous Attorney General's opinions, both of which held that
a public board cannot appoint one of its members to an office
or position while he is still a member of the board. Opinion
No. O-410, dated March 15, 1939, held that a member of the
Board of Directors of Texas Technological College was not
eligible for appointment to the presidency of the College.
The member had submitted his resignation from the Board and
did not participate in the vote on his appointment, but at
the time the appointment was made the Governor had not
accepted his resignation or appointed his successor. The
opinion held that under the "holdover" provisions of Article
XVI, Section 17 of the Texas Constitution, his membership
continued until his successor had qualified, and that his
appointment while still a member of the Board was void as
being contrary to public policy.
          In Opinion No. O-789, dated May 11, 1939, the county
judge had died and one of the county commissioners wanted to
apply for appointment to fill the vacancy. The question was
whether a member of the commissioners court, by tendering his
resignation as commissioner and having it accepted by the
remaining three commissioners, would be eligible and legally
qualified to be appointed county judge In the event the
remaining three commissioners saw fit to appoint him. The

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Ron. Jack N. Fant, page 4 (C-452)


opinion noted that the commissioner's membership on the court
would not be severed until his successor had qualified
(Article XVI, Section 17 of the Texas Constitution) and that
the vacancy in the office of county judge would have to be
filled before the commissioner could effectuate his reslgna-
tion, since no one was authorized to appoint his successor
except the county judge (Article 2341, V.C.S.). It followed
Opinion No. O-410 In holding that the commissioner was not
eligible for appointment to the judgeship.
           The holdings in these two opinions are based on the
 common law rule declaring such appointments to be void as
 contrary to public policy. That rule becomes the law of this
estate by virtue of Article 1, V.C.S., which adopts the common
 law insofar as it does not conflict with the Constitution
and statutes of Texas, and we may recognize it as the law even
 if no Texas court has previously declared the rule. State ex
 rel. Smith v. Bowman, 184 NJ. App. 549, 170 S.W. 700 w
          We have failed to find any Texas case squarely in
point, but at least one case has recognized the existence of
the rule. Ehlinger v. Clark, 117 Tex. 547, 8,S.W.2d 666 (1928),
is frequently cited in support of the rule, but an analysis of
the opinion shows that the case appears to have been decided
under the common law principle that a personcannot hold two
incompatible offices at the same time rather than under the
principle here involved, although some of the reasoning and
conclusions seem to be more nearly in line with the latter
principle. St. Louis Southwestern Ry. Co. of Texas v. Naples
                       ., 30 S.W.2d 703 (w.           1930),
                       trustees of a school district, in
fulfilling its duty to appoint a board of equalization upon
having exercised its discretion to appoint a tax assessor
for the district instead of having the taxes assessed by the
county tax assessor, could not empower itself to sit as the
board of equalization. There Is some question whether the
principle with which we are now concerned was the one on which
the decision should have been based or was based, but in any
event the court clearly recognized the existence of the rule
in the following quotation from the opinion (30 S.W.2d at 706):
          "The statute plainly evidences the will of the
     Legislature to grant the power to the board of trustees
     to select and appoint an official board of equalization
     of assessments to be composed, not of themselves, but
     of other qualified and suitable persons. The words
     of the grant of authority, which alone can justify
     the action of the board of trustees, cannot be extended
     by implication or inference to include the authority

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Hon. Jack N. Fant, page 5 (c-452)


    to choose and appoint themselves to be the board
    of equalization. In this view of the statute
    the board of trustees were without any authority,
    and it was an absolutely void act, as must be
    legally regarded, to appoint themselves as the
    board of equalization of assessments. The
    principle is set out in 46 C.J. 8 43, p. 940,
    namely: @It is contrary to the policy of the
    law for an officer to use his official appoint-
    ing power to place himself in office, so that,
    even in the absence of statutory inhibition,
    all officers who have the appointing power are
    disqualified for appointment to the offices
    to which they may appoint.'"
          The full extent of the common law rule is summarized
in the following quotation from 67 C.J.S. 130, Officers, 5 20:
         "It is contrary to the policy of the law for
    an officer to use his official appointing power
    to place himself in office, so that, even in,the
    absence of a statutory inhibition, all officers
    who have the appointing power are disqualified
    for appointment.to the offices to which they may
    appoint; and similarly a member of an appointing
    board is ineligible for appointment by the board,
    even though his vote is not essential to a majority
    in favor of his appointment, and although he was
    not present when the appointment was made, and
    notwithstanding his term in the appointing body
    was about to expire; nor can the result be accom-
    plished indirectly by his resignation with the
    intention that his successor shall cast his vote
    for him."
          The great weight of authority among cases decided
under the common law In other States is against eligibility
of a person for an appointment to be made by a board of which
he is a member. The following cases discuss the public policy
which forbids the appointment and collect some of the authorities




fact situation and hold merely that a member cannot vote for
himself, without declaring his ineligibility for appointment
by other members of the board, but many cases do reach the


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Hon. Jack N. Fant, page 6 (C-452)


question of eligibility and hold against it. The only decisions
we have found which have rejected the rule of ineligibility
are by the courts of Connecticut, which hold that a member
cannot vote for himself but that he is not rendered ineligible
for appointment upon the vote of other members. State ex rel.
Oakey v. Fowler, 66 Conn. 294, 32 Atl.  162, 33 Atl. 1005
(1895);~State ex rel. Kenney v. Ranslow, 154 A.2d 526 (Conn.
Super. 1959).
          The policy of the law is stated in
Weissinger, supra, as follows (131 S.W. at
          " * * * It is of the highest importance that
     municipal and other bodies of public servants
     should be free from every kind of personal influence
     in making appointments that carry with them services
     to which the public are entitled and compensation
     that the public must pay. And this freedom cannot
     in its full and fair sense be secured when the
     appointee is a member of the body and has the close
     opportunity his association and relations afford
     to place the other members under obligations that
     they may feel obliged to repay. Few persons are
     altogether exempt from the influence that intimate
     business relations enable associates to obtain,
     and few strong enough to put aside personal
     considerations in dispensing,public favors. And
     it is out of regard for this human sentiment and
     weakness, and the fear that the public interest
     will not be so well protected if appointing
     bodies are not required to go outside their
     membership in selection of public servants,
     that the rule announced has been adopted, and
     ought to be strictly applied."
p6 State ex rel. Bove v. McDaniel; 52 Del. 304, 157 A.2d 463,
  6 (IgbO), the court said:
          ' * * * Both the common law and the statute
     demand that the power of appointment be exercised
     fairly and impartially. In order to attain this
     purpose it is important that the deliberations
     of the appointing body not only be free from
     wrongdoing but free from suspicion of wrong as
     well."
          In view of the foregoing authorities, we are of the
opinion that your first question should be answered in the
negative. However, in connection with your second question,


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    .
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        Hon. Jack N. Fant, page 7 (C-452)


        if a Commissioner unconditionally resigns his present
        position and the County Judge appoints a successor who
        qualifies by taking the proper oath and making the necessary
        bond, then the former Commissioner would have severed his
        connection as an officer and would be in the same position
        as any other applicant who might apply far the office of
        County Judge, should there become a vacancy in the office
        of County Judge of that county.
                  The Attorney General's office cannot pass on
        factual questions; neither is this opinion to be construed
        as suggesting that the Commissioners Court appoint a Certain
        individual as County Judge, for this is a matter for the
        exclusive determination of the Commissioners Court of a county
        if there should be a vacancy in such office.
                               SUMMARY
                 A County Commissioner who has tendered his
            resignation for the office continues to be a
            member of the Commissioners Court pursuant to
            the provisions of Section 17 of Article XVI of
            the Texas Constitution until his successor has
            been appointed and has qualified and under these
            circumstances would be ineligible to be appointed
            by the Commissioners Court to the office of County
            Judge because such an appointment would be contrary
            to public policy.
                  However, if the County Commissioner tenders
             his resignation unconditionally and it is accepted
             by the County Judge, and in turn the County Judge
             appoints a successor who qualifies for such office,
             then the former County Commissioner would be in
             the same position as any other applicant who might
             apply for the office of County Judge in case there
             is a vacancy.
                                      Yours very truly,
                                      WAGGGNRR CARR
                                      Attorney General

                                         BY
                                              John H. Banks
                                              Assistant
        Jm:sj

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