         THE    .LITT~RNEY         GENE-L

                     OF    TEXAS




Honorable A. L. Brantleg
County Attorney
Irlon County
Mertzon, Texas
Dear Mr. Brantley:         Opinion NO. 0-6245
                           Re: (1) Whether a County Judge can
                           legally declare a vacancy in the
                           County Commissioners' office where
                           the Commissioner has been inducted
                           into the United States Army, and ap-
                           point another Commissioner in his
                           place; (2) If the new Commissioner
                           has duly qualified, and if it is
                           determined that the County Judge
                           acted without authority, is the
                           County Clerk acting legally by re-
                           fusing to issue warrant of payment
                           to said new Commissioner for his
                           service, although said Clerk is
                           directed by the Commissioners' Court
                           to issued such warrant of payment?
        We are in receipt of your letter requesting the opin-
ion of this department on the above-stated questions. Your
letter, in part, reads as follows:
        "The question has been brought to my attention
    the matter as to whether a County Judge can legally
    declare a vacancy in the county commissioners office
    where the commissioner has been inducted into the
    U. S. Army, and appoint another commissioner Ln his
    place.
        "Further, if the new commissioner has duly
    qualified, and if you find that the County Judge
    acted without authority, 1s the County Clerk acting
    legally by refusing to issue warrant of pa,ymentto
    said new commissioner for his service, though said
    Clerk is directed by the Commissioners' Court to
    issue such warrant of payment?
        "The old commissloner who is now in the ser-
    vice refuses to resign his position according to a
    letter in the hands of the County Treasurer.
Honorable A. L. BrantIey, :page.2       Q-6245


        We are also in r,eceiptof your later letter,accompan-
ied by a brief of the matters Involved, for which we thank
you.
        Article V, Section 24, of the Constitution, is as
follows:
        "County Judges, county attorneys, clerks of
    the District and County Courts, justices of the
    peace, constables, and other county officers,
    may be removed by the Judges of the District Courts
    for incompetency, official misconduct, habitual
    drunkenness, or other causes defined by law, upon
    the cause therefor being set forth in writing and
    the finding of Its truth by a jury.
        Article XVI, Section 14, of the Constitution, Is as
follows:
        'All civil officers shall reside within the
    State; and all district or county officers with-
    in their districts or counties, and shall keep
    their offices at such places as may be required
    by law; and failure to comply with this condition
    shall vacate the office so held."
        The pertinent statutes are as follows:
        "All district and county attorneys, county
    judges, commissioners, clerks of the district and
    county courts and single clerks in counties where
    one clerk discharges the duties of dlstrict and
    county clerk, county treasurer, sheriff, county
    surveyor, assessor, collector, constable, cattle
    and hide inspector, justice of the peace and all
    county officers now or hereafter existing by au-
    thorlty either of the Constitution or laws, may
    be removed from office by the judge of the district
    court for incompetency, official misconduct or be-
    coming intoxicated by drinking intoxicating liquor,
    as a beverage, whether on duty or not; provided
    such officer shall not be removed for becoming
    Intoxicated when it appearsupon the trial of such
    officer that such intoxication was produced by
    drinking intoxicating liquors upon the direction
    and prescrlptlon of a duly licensed practicing phy-
    sician of this State." -- Article 5970, Vernon's
    Annotated Civil Statutes.
        "In case of vacancy in the office of   commis-
Honorable A. L. Brantley, page 3         O-6245


    sioner, the county judge shall appoint some suit-
    able personliving in the precinct where such va-
    cancy occurs, to serve as commissioner for such
    precinct until the next general election." --Arti-
    cle 2341, Vernon's Annotated Civil Statutes.
        Hamilton v. King, 206 S.W. 953, is decisive of the
controlling point in the matters under consideration. It is
there held:
        "After very careful investigation, we have
    been unable to find any statute of this state or
    provision of the Constitution which declares that
    an absence from the county of one of its officials,
    who shall be engaged as a private soldier in the
    Army of the United States, shall create a vacancy
    in the office of such official; and, in the ab-
    sence of any such provision, we are of the oplnlon
    that the commissioners' court in this instance
    had no authority to declare the office of county
    attorney vacant, and to appointsappellee thereto,
    but that, In the absence of such provision, the
    authority to determine and declare such question
    was'vested in the district court of Sabine county."
        Neither the Commissioners' Court nor the County Judge
has the power -- jurisdiction -- to declare a vacancy in the
office of County Commissioner. The County Judge is clothed
with the power only to appoint a Commissioner 'In
                                               --- case of
vacancy in the office", which vacancy, however, must actual-
ly exist.
        NOW, the act of the County Judge, in attempting'to
appoint a Commissioner where no vacancy in the office existed,
is not authorized by any law, and his attempt to do so Is
therefore utterly void of any effect whatever. It create3
no right, and confers no authority or power whatsoever on the
attempted appointee, and imposes no duty whatever on any of-
ficer of the county concerned with the finances of such
county. The situation is precisely the same as though the
attempted appointment by the County Judge had never been made.
        It is well settled that salary for compensation of
an offlcer is incident to the office, and not dependent upon
services actually performed by such officer. It is obviously
true that compensation should in no event be paid to two
County Commissioners for the same time, for the same precinct.
        Not only the policy of the State, but the statutory
law itself has been made plain by the recent enactment of the
                                                          .




Honorable A. L. Brantleg, page 4         o-6245



Legislature, (Acts, 48th Leg. p. 381) suspending Articles
7045 and 2354 of the Revised Civil Statutes (1925) until
May 1, 1945, and including the proviso that: '* * + provided,
however, that If any member or members of the Commissioners'
Court or the County Judge is in active milFtary or naval
service, county taxes may be levied at any regular term of
the Commissioners' Court when a quorum of its members are
present. This Section shall be effectfve until the date set
out -inSection 1 of this bill."
        In Cramer v. Sheppard, 167 3.W. (2) 147, our Supreme
Court has said:
         "To our minds it is Illogical to contend that
    the construction we have given these constitution-
    al provisions would make it impossible for a county
    commissioners' court to fix tax rates, if a member
    thereof should be absent for the same reason Judge
    Dixon was absent because Article 7045 of our Civil
    Statutes requires all members of such courts to be
    present when county tax rates are fixed. Certain-
    ly a statute cannot override the Constitution.
    Where the Constitution permits a member to be ab-
    sent, a statute cannot require him to be present.
    Itfollows that in such instance Article 7045, su-
    m-a, cannot be applied as to the member absent by
    constitutional authority.'
        It would appear, therfore, that even in the absence
of the act of suspension of 1943, nevertheless, the County
Commissioner's absence being due to superior authority --
induction into the Army of the United States -- the holding
of the courts in this respect would be the same as to the
absent Commlssloner.
        Article 1928 of the Revised Civil Statutes of 1925
declares as a condltlon of the County Judge's offlclal bond,
among other things, "that he will not vote or give his con-
sent to pay out county funds except for lawful purposes."
        From what we have satd it follows that your question
No. 1 should be answered in the negative; that 1s to say,
the County Judge had no authority, under the facts stated by
you, to appoint a Commissloner, and that such act, together
with all incidental acts of himself, the Commissloners' Court,
the County Clerk,or any other county officer, is void. The
County Clerk,therefore, was entlrelg within his authority,
and it was his duty to refuse to Issue any warrant of payment
to the appointee of the County Judge for his service.
Honorable A. L. Brantleg, page 5              O-6245



        Our holding is supported by the following opinions
heretofore rendered by this department, to-wit: Nos. Q-2533,
0-3080,   O-3295,   o-4457   and o-3448.

                                     Very truly yours
                                  ATTORNEY GENERAL OF TEXAS


                                     By s/Ocie Speer
                                          Ocie Speer
                                           Assistant
OS-MR-WC

APPROVED NOV 13, 1944
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
This Opinion Considered And Approved In Limited Conference
