   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                         February 22,200l



The Honorable Jeff Wentworth                         Opinion No. JC-0347
Chair, Committee on Redistricting
Texas State Senate                                   Re: Whether section 143.006(b) of the Texas
P. 0. Box 12068                                      Local     Government        Code   authorizes    a
Austin, Texas 787 1 l-2068                           municipality’s chief executive officer to appoint
                                                     a person to fill the position of a member of the
                                                     Fire Fighters’ and Police Officers’ Civil Service
                                                     Commission whose term has expired, and related
                                                     questions (RQ-0294-JC)


Dear Senator Wentworth:

         Your predecessor as chair of the Committee on Redistricting, Senator Gallegos, asked this
office a series of questions concerning section 143.006 of the Local Government Code, especially
with respect to the issue of appointments to the Fire Fighters’ and Police Officers’ Civil Service
Commission. We conclude that the end of a term is not a “vacancy” for the purposes of that statute,
and further that the power to nominate a member to such a cornmission is given to the chief
executive of the municipality, not to its governing body. Questions concerning the criminal
provisions of the statute would require considerations of facts and circumstances of a sort in which
this office does not engage in the opinion process, and accordingly we cannot answer them.

       Section 143.006(b), which is central to your predecessor’s     concern, reads as follows:

                   The commission consists of three members appointed by the
               municipality’s chief executive and confirmed by the governing body
               of the municipality. Members serve staggered three-year terms with
               the term of one member expiring each year. If a vacancy occurs or
               if an appointee fails to qualify within ten days after the date of
               appointment, the chief executive shall appoint a person to serve for
               the remainder of the unexpired term in the same manner as the
               original appointment.

TEX. Lot. GOV'T CODE ANN. 0 143.006(b) (Vernon 1999) (emphasis            added).
The Honorable       Jeff Wentworth        - Page 2           (JC-0347)




         Your predecessor asked first whether the expiration of a term is “considered a vacancy in the
sense expressed by this section.“’ In our view it is not. A “vacancy” in this context clearly occurs
during, and not at the end of, a term of office. Otherwise the provision that “the chief executive shall
appoint a person to serve for the remainder of the unexpired term” would be meaningless. See TEX.
GOV’T CODE ANN. 6 311.021(2) (Vernon 1998) (p resumption that entire statute is intended to be
effective).

         Section 3 of article 1269m, Revised Civil Statutes, the pre-codification source law, is to the
same effect. “Any such vacancies in said Commission, caused by death, resignation, or otherwise,
or by failure of any appointee to qualify within ten (10) days after appointment, shall be filled in the
manner hereinafter specified . . . .” See Act of May 15, 1947, 50th Leg., R.S., ch. 325, 1947 Tex.
Gen. Laws 550,55 1. This language makes it even more clear that the concern of the legislature was
with filling vacancies within a term, such as might be caused by “death, resignation, or otherwise.“*

        The second question asked is whether, if “vacancy” includes the expiration of a term, “the
appointment of another member to the commission need[s] confirmation by the governing body.”
Request Letter, supra note 1, at 1. As we noted above, “vacancy” is not to be so construed.
Accordingly, we do not answer this question.

         Your predecessor next questions whether the governing body of the municipality, by itself,
may appoint commission members.            While the statute gives the power of confirmation to the
governing body, with equal clarity it gives the power to nominate to the chief executive. Nothing
in the statutory language suggests that the governing body may usurp what the request letter refers
to as “the right or responsibility to appoint commission members without consent or approval of the
chief executive.” Id.

         A letter on this issue from the Mayor Pro Tempore of the City of South Houston draws our
attention to a city ordinance, section 2-3(c)(2) of the Code of Ordinances, which provides that the
mayor shall make vacancy appointments “not later than the second regular meeting of the city
council after the vacancy occurs,” and that in the event “the mayor fails or refuses to do so, the city
council shall make such appointment[s] . . . .“3 However, a municipal ordinance, even if enacted by
a home rule city, is subordinate to a statute such as section 143.006. See TEX. CONST. art. 11, 8 5
(“no charter or any ordinance passed under said charter shall contain any provision inconsistent with



         ‘Letter from Honorable Mario Gallegos, Jr., State Senator, to Honorable John Comyn, Attorney         General of
Texas at 1 (Oct. 9, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

           ‘Pursuant to   the Code Construction Act, TEX. GOV’T CODE ANN. 5 3 11.023 (Vernon 1998), prior law may be
considered as an aid       to construction,  so long as it is not “used to alter or disregard the express terms of a code
provision.”    Fleming    Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999). In this instance there is no
substantive difference      between the prior law and the code.

         3Letter from Eloise Smith, Mayor Pro Tempore,          City of South Houston, to Office of the Texas Attorney
General (Dec. 11,200O) (on file with Opinion Committee)         [hereinafter Smith Letter].
The Honorable    Jeff Wentworth   - Page 3         (JC-0347)




. . . the general laws enacted by the Legislature of this State”). The City of South Houston is, we are
informed, “a Type A General Law City.” Smith Letter, supra note 3, at 1. As such its authority is
yet more limited than that of a home rule city. “[Ml unicipalities have no inherent right of self-
government which is beyond the legislative control of the state. . . .” 52 TEX. JUR. 3D MunicipaZ
Corporations 5 136 (1999). Accordingly, the provisions of the city’s ordinance may not contravene
the statutory scheme.

         The final two questions concern another provision of the statute, section 143.006(h), which
reads:

                    The chief executive of a municipality or a municipal official
                commits an offense if the person knowingly or intentionally refuses
                to implement this chapter or attempts to obstruct the enforcement of
                this chapter. An offense under this subsection is a misdemeanor
                punishable by a fine of not less than $100 or more than $200.

TEX. Lot.   GOV’T CODE ANN. 5 143.006(h) (Vernon 1999).


          We are asked, in relation to this statute, how many times a municipality’s governing body
may refuse to confirm the chief executive’s appointment, and “[wlhen are these refusals considered
a violation” of section 143.006(h). Request Letter, supra note 1, at 1. We note first that the statute
is silent as to this question. It sets no particular limits in this regard. Further, a confirmation, like
an appointment, would appear to be discretionary rather than ministerial. See Tex. Att’y Gen. Op.
No. JC-0140 (1999) at 3 (appointment of constable to fill vacancy is discretionary, and mandamus
will not lie against commissioners court to compel appointment). “An act is ministerial when the
law clearly spells out the duty to be performed by the official with sufficient certainty that nothing
is left to the exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791,793 (Tex.
1991). If confirmation by the city council were merely ministerial, it would be supererogatory.

         Finally, as to what would constitute sufficient evidence that either the chief executive or any
other municipal official was “knowingly or intentionally rems[ing] to implement . . . or attempt[ing]
to obstruct the enforcement of’ this statute, such a determination would require fact-finding of the
type in which we cannot engage in the opinion process.
The Honorable   Jeff Wentworth   - Page 4     (JC-0347)




                                      SUMMARY

              A “vacancy” on the Fire Fighters’ and Police Officers’ Civil Service
          Commission,     for the purposes of section 143.006 of the Texas Local
          Government Code, does not occur upon the expiration of a member’s term.
          The appointment of another member by a municipality’s chief executive
          requires confirmation by its governing body. However, the governing body
          has no independent power to appoint such members.




                                            Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
