L




                                                                       R-225



                                     NEY



                           ArrsTrN 11. TEXAS                Overruled by Kerby v..
                                                            Collin County, 212 S.W. (2d)
                                                            494,,Dallas Civ.~App. (1948)
                                  Apr. 2, 1947


    Hon. R. E. Beasley                   Opinion No. V-115
    County Auditor
    Collin County                        Re:   Whether an order of the Com-
    McKinney, Texas                            missionere’ Court appointing
                                               a County Treasurer   to fill the
                                               unexpired term of her prede-
                                               ceseer in office constitutes a
                                               written contract.

    Dear Sir:

                Your statement and request for an opfhion are in part as
    follows:

                “On February 8, 1947, the claim of AItaBrowne
           Kerby (Exhibit,“A”)   fer salary($2,033,20) and inte-
           rest ($319.60) was filed with the Commissioners’
           Court of Collin County, Texas.

                “THE   FACTS   ARE   AS FOLLQWS:

                 “On the first day of May, 1943, the Commission-
           ers’ Court in regular session accepted the resigna-
           tion of the then acting County Treasurer.   On the
           same date and in the same motion, the Cou,rt ape
           proved the bond and oath of office of Alta Browne
           Kerby as county treasurer and appointed her to fill
           the unexpired term for that office (Exhibit “B”). At
           the time this action was taken, th&r,e was a apr~ial
           county treasurer    salary law for GoLUn County on the
           Statute Books which provided for $608.00 per year
           and at the time Alta Brovme Kerby wa$ appointed,
           she knew that that was the e&shy that w6a being Raid
           for that office,.

                “We are well acquainted with the fact that many
           special statutes like this one have bean declared to
           be unconstitutional and the Courts have held that thin
           County Treasurer    was entitled to a mPnthl$r #&%a~?
           based on an annual salary of $t@d8.80 per year i , .

                 “Is this claim barred   by the two ye,ar statute of
           limitations P w
Hon. R. E. Beasley,        Page 2                          Opinion No. V-115



Article     1703 of V.C.S.   reeds:

               “‘A County Treasurer  shall be electe,d at each
          regular general election for a term of two years.”

Article     1707 of V.C.S. provides:

               “In case of vacancy in the office of the County
          Treasurer,   the Commissioners’    Court of the coun-
          ty in which such vacancy occurs shall fill such va-
          oancy by appointment, such appointment to be made
          by a majority vote of the Commissioners     present,
          at a regular or special term of such court. Such
          appointment shall continue in force until the next
          general election.”

Article     1708 of V.C,S. reads:

                “The person appointsd to fill the vacancy as
          provided in the pre,ccding Article shall; be,fore en-
          tering upon the di,$charge of the duties of such of-
          fice and within twen,ty days afte,r he has been noti-
          fied of such appointment, take the oath and give the
          bonds requi,red, as in th,e:,case of a,n e~Ie,ction to such
          office. w (Emphasis ours).

            The authorities are uniform in holding that one appointed
to an elective office holds an irrevocable  position insofar as the ap-
pointing authorities are concerned,    89 A,L,R. 132: Collinsv.  Tracy,
36 Tex, 546.

            Since under Article 1708, supra, the appointee to fill a va-
cancy shall perform all of the acts required of a duly elected County
Treasurer,    coupled with the further fact that his appointment from
the point of view of the appointing authority is irrevocable,    it natur-
ally follows he assumes the full responsibility    of the office just as
though he had been elected to it.

               Article   3038, V.C,S.,~ provides:

                “‘On the Monday next f,ollowing the day of ele,c-
          tion, but not before, the Commismon&.rs’ Court shall
          open the election returns and estimate the re,sult, aa-
          cording the state of the polls at each precinct in a
          book to be kept for that purpose; o . (”

               Article   3032, V.C.S.,   reads:

              “After an estimate of the result sf an alectien
          has been made as provided for in this title, the
 .




Hon. R. E. Beaeley,     Page 3                        OpWoa Wo. Y-&5



      Co&y Judge shall deliver to the candidate or candi-
      dates for whom the groateat number of votas have ‘been
      polledfo,r county and precfnct offfcers a certificate of
      election, naming there& the office to WI&&   such candi-
      date has been elected, the number of votes polled for
      him, and the day on which such election was held and
      shall sign the same and cause the seal of the county
      court to tie thereon impressed. . . ”

            In the case of an elected official under Article 3030, aupra,
the Commissioners’ Court estimates the result and record* the &ate
of the polls in each precinct in a book to be kept for that purpore, and
under Article 3032, the County Judge delivers to the candida* who
hao polled tha greatest number of vote&, for ~eouatyand precinct om
a certificate of election. In our opinion, thfs oozutituter as m8u& 0f.a
written inrtrument a8 the miautes of the Commis8ionera’ Gorvt appc&t-
ing h person to fill a vacancy. This may be construed ae analogous to
the minutes of the Commissioners’     Court in appoiartag a parron to fill
a vacancy in office, and clearly does not constitute an im&mmdmt in
writing that would have the edict of a written contract.

          Article     5526, V.C.S;,   reads:

           “There shall be commenced and prosecuted with-
      in two years after the cause of action shall have ac-
      crued and not afterwards ,a11 action8 or suits%ucourt
      of the following de.#arfption:
          ”
              . . .

           “4. Actions foa’debt where the indebtedness ier&ot
      evidenced by a contract in writfng.”

          Article     5527, Y.C.S.,   provides:

           “There ahaLl bo wsninmaed qd prosecuted with-
      in four year* after SQmcaw    of actfan eh8ll have *Ic-
      trued add not afterwards ail actions or suibs in Court
      of the following description:

          “1. Aotiona for debt where the iadebtedneae is wi-
      dented by or founded upon any contract in writing . . .*

           Texam Jurisprudence,       Volume 2.8, page 114, section 36, pro-
vides in part a.e follows:
           I.. . . An or&r of a Commissioners,’ Court ir
      not a written agreement if it contain6 no provia$oas
      as to many essential feature8 of the contract.  Nor
     ‘does a general law in a city fixing the salary at-
      tached to an office and regulating the fee to which
 I-Ion..R. E. Beasley,   Page 4                      Opinion No. V-115



       an officer ie en&lad constitute a cosltract between
       the city acid a? officer who performs services pm-
       suant to’the ordinance , . .*

             The @se of.S&b      v. Wise
,, that a County Tlbeaeures ‘uan, at the e                               *
   recover commP~oicaiara aecrufng~aml
 ~years before In&itut~o~ of suit.      :

           ‘In the came’of City of Houston v. S%amfi,   9@ S, W. ,$Fa,@@
 Court said:

            “While ~upnatbi~ &~Juc+, we w&Rdicpa(aa of
       the contention of defendant that the oomm&eio~re
       claimed having been earned under a+nordinaqee or
       resolution of the city fixing the, aallay and fee,& of
       the city attorney, the au& for aaid commies’ioda
       was founded upon a writ&en a.oat%aet arul wovtd rxet
       be barred until four yeaarls h&r :%hcr;auuu ti%i!.&$an
       accrued, This ,ordinaoce aarmot be
       contra,& between the &,l and the .Q$
       der whic,h the service@ !ror $ihX& %
       claims compensation was rendesed
       general law of the city            e Wary b be a‘t-
       tached %a the office of e         mey   csd r&guIating
       ths fees to which                 rhould be fttatwea.
       Wa think it claar                 that aommisaiene
       claimed by an officer we* caned m&l           a geixeral
       law fFdag the compehsa&oon for the oervfce~s ren-
       dered does not make the,$uSt fog eulvh ~omxr$~~si@x6
       one upon a written coiatraet, and thb t&al court
       corm&ly     heA* that fpM twwysar   at&ate of ‘Iimita-
       tions..applied to defeadaM% claim for arid commi+
       sions.”

             In the oa#e of Stegall, Sheriff v. lvlaLenn& county, 144 S.
 W. (2d) llll, the coa,rt held in UI action involvmg a mutual mistake
 aa to fees ,betwesn a sheriff and MS aotiMy !th&tlimitatioq bclgiaa, to
 run on the sheriff”6 claim agaib&t the county ti favor of the county       ,.
 from the time the claim matured re ardless of whether it WI@ pre-
 sented to and rejected by the Go,,ljl seiensrr ” Court, am? t2qt *uch
 a claim would be governed by the, t9po year #tat&~ a lUr&af&u.
                                     /
              The case’of Lealie v. City of DalI&, 172 S, We (%#)~777,   ,.
 held that the two year limitataon LI
 ageinst a city to recover pryments ‘ma
 ordinance for services of a special police ob&er, an8 huhansa,b,wltcw
 action was filed more than two years after the last of such payments
 was made; the action was bar”red.
Hon. R. E. Beasley,         Page      5                             Opinion No, V-II5



                 The court in the case of Wilson               v. Shaw, 188 N.W. 940,
166 A.L.R.        042, said:

                   “Those appointed to fill vaundes    shall bold
             until the next general eleotien and until their BUG-
             cessers are elected and qualified. , . . Therefore,
             whoever is appointed or ekected is appointed or
             elected for an unexpired portion of a prescribed
             term.    The term prescribed is a unit of time. A
             new term is not created.    The appointee simply
             steps into the shoes, so to speak, of him who is
             elected for the constitutional term,. , . and is en-
             titled to perform the duties and receive the emolu-
             ments of the office until the end of that term or
             until a successor shall have been elected. . . The
             term lives on even though the incumbent resigns,
             is impeached ordies,     Personality has nothing to
             do with the question.”   (Emphasis ours.)

           In our opinion, an order of the Commiesioners’ Court
appointing a treasurer to fill the unexpired term of Ceunty Treas-
urer is not a contract in writing within the meaning of &t*cle
5526, V,C.S., but is only evidence of authority to hold such posi-
tion by the appointee stepping into the shoes of the elected offi-
cial. Since the order is not a contract in wri’ti!&g, ittherefore
follows that the two year statute of limitation is appUcpi3Ie, and
your question is answered in the affirmative.



                   .An appaintment by :a Corpmjssionese    Court
             of .a County Treasurer   to fill an unexpired term
             which is entered of record on the ‘minutes of said
             court does, not constitute a contract in ,writing, and
             the two year statute of limitations. is applicable to
             ,a claim for certain salary items, (kTt&ie 5526,
             ~V.c&)




                                              BY           Robert A. Hall,
                                                         ~ Assistant
                                                                                ‘,
                                                                              ., ‘,

                                          ., 1;. ,’ ,’    ,.
R&.fI:JM,c                    :.   . ,.
