Honorable Chas. F. Hemphlll
County Auditor
upton county
Rankin, Texas

Dear Sir:                            Opinion NO. O-4868
                                     Re: Was the appointment
                                          of the Justlce of the
                                          Peace legal and is he
                                          entitled to his salary
                                          under the facts stated?

           Your letter of September 29, 1942, requesting the opinion
of this department on the above stated question reads in part as
follows:
          "On September 4th 1942 the Commissioners
     Court of this County met in Special Session
     without having notified CommissionerJ.O.
     Currle, whereas on August 21, 1941, at a
     Special Meeting of Commissloners~Court of
     Upton County, Texas, at which meeting those
     present were the County Judge, the four
     County Commissioners,the Sheriff, and the
     County Clerk, and at which meeting the fol-
     lowing motion was passed, adopted and made
     a part of the Commissioners'Court Records
     of IJpton.County,to wit:
          "tMotlon by CommissionerWheeler, second-
     ed by CommissionerYates that no more Special
     Sessions of the Commissioners'Court be called
     unless In case of an emergency. That should an
     emergency arise all members of the Court be not-
     ified of such attention to call such special
     Session and advised of the purpose thereof.
            "'All Commissionersvoting Aye.'
          "In the Special Session above mentioned
     which was held on September 4, 1942 the Commls-
Honorable Chas. F. Hemphill, Page 2, No. O-4868

     sloners' Court appointed Mr. Maburn L. Harris
     to fulfill an unexpired term as Justice of the
     Peace at a salary of $100.00 per month.
          "As County Auditor, I have withheld pay-
     ment of Maburn L. Harris' salary due to the fact
     that the Special Session at which he was ap-
     polnted was not lawfully and legally held unaer
     the Statutes and the Special Agreement had by
     and between this ssme group of County Officials
     and so recorded in their minutes.
           "I am convinced that there was a lawful
      quorum of the Court present and the only ques-
      tion as to the legality of the appointment is
      whether or notthe above mentioned agreement Is
      of binding consequencein this or any other in-
      stance, and whether I am within y just rights
      in withholding this man's salary.
           In your letter of November 16, 1942, supplementing
the above mentioned letter, you state In part:
          "I wish-,toadvise that the captioned re-
     ouest was merely for an opinion regardinga
     lawful quorum for the Commissioners'Court of
     this County due to the fact that this particular
     Court had at a prior meeting recorded in the
     Commissioners'Court Minutes an agreement whereby
     they would not hold a special session unless all
     Commissionershad been duly notified of such special
     session. I think the Statutes are clear concerning
     a legal quorum, but the question is simply whether
     or not such minute of the Court Is of any value on
     the records. You request a reason why one of the
     Commissionerswas not notified of the special ses-
     sion, I am forced to answer that I do not know.
     There Is possibly no reason at all.
           "I wish to advise further that all County
      Officials and all precinct Officials In this
      County are being paid on an annual salary basis
      for the calendar year of 1942, and the salary to
      be paid to the newly appointed Justice of the
      Peace Is the same as that paid to the deceased
      officer."
          Article 2343, Vernon's Annotated Civil Statutes pro-
vides:
           "Any three members of the said court, ln-
      oludlng the county judge, shall constitutea quorum
.




    Honorable Chas. E. Hemphill, Page 3, No. O-4868

          for the transactionof any business, except
          that of levying a county tax.”
               Article 2342, Vernon’s Annotated Civil Statutes reads as
    follows:
              “The several commissioners,together with
         the county judge, shall compose the 'Commls-
         sioners Court’, and the county judge, when pre-
         sent, shall be the presiding officer of said
         court.”
               Article 2348, Vernon’s Annotated Civil Statutes pro-
    vides:
              “The regular terms of the commissioners
         court shall be commenced and be held at,the
         court house on the second Monday of each mqnth
         throughoutthe year and may continue In sess$on
         one week; provided the court need not hold&re
         than one session:eachquarter If the business of
         the court does not demand a session. Any session
         may adjourn at any time the business of the ‘court
         is disposed of..Special terms may be called by the
         county judge or three of the commissioners,and
         may continue in session until the business Is
         completed.”
      ..,      Article 2355, Vernon’s Annotated Civil Statutes pro-
    vides in part:
              “The Court shall have power to fill va-
        cancies in the office of: ..... Justices of the
        Peace .... Such vacancies shall be filled by a
        majority vote of the members of said Court, pres-
        ent and voting, and the person chosen shall hold
        office until the next general election.”

               Under the facts stated, all members of the commlsslonersl
    court were present except one county commissionerwhen the justice
    of the peace wae appointed by said court at Its special meeting.
    However, one of the co,mnissionershad no notice of the special
    meeting of the oommlssloners1 court when the court appointed the
    justice of the peace. Flotwithstandingthe order of the commisslon-
    era’ court requiring that all the members thereof be notified of
    any or all special sessions of the court, It is our opinion that
    the action of the commissioners1 court at a special meeting with-
    out notice to all the members thereof is void.
               It is stated in Corpus Jurls., Volume 46, page 1035:
Honorable Chas. E. Hemphill, Page 4, No. O-4868

          "In no Casey, in the absence of express
    statutory provision to the contrary, can the
    action of a majority be regarded as valid, un-
    less all are present or have been notified,
    although It has been held that, until the con-
    trary has been shown, it will be presumed that
    all were present and participatedin the pre-
    ceedlng or had notice. Where all the members
    of a board are present and participateIn a
    meeting without objection, it Is Immaterial
    that no notice of the meeting was given."
           In the case of Webster vs. Texas & Pacific Motor Trans-
port Company, et al., decided November 11, 1942 (Supreme Court.of
Texas, not yet reported), it Is stated:
            "It Is a well established rule in this
    State, as well as in other States, that where
    the Legislature has committed a matter to a
    board, bureau, or commission,or other admin-
    istrative agency, such board, bureau, or com-
    mission   must act thereon a8 a body at a stat d
    meeting,'or -oneproperly called, and of whicz
    all the members of such board have notice, Or
    of which they are given an opportunityto at-
    tend. Consent or acquiescenceof, or agreement
    by ,theIndividualmembers actlng sepamtely.,
    and not as a body, or by a number of the mem-
    bers less than the whole acting collectively
    at an unscheduledmeeting without notice or
    opportunityof the other members to attend,
    is not sufficient.34 Tex. Jur.457; 51 C.J.
    62; State v. Union Light, Heat & Power Co.(N.D.),
    1821v.w.539. McNolty v. Board of School Dlr-
    ectors (Wi.s.j,  78 N.W. 439; People v. Whltrldge,
    129 N.Y.S. 295; city of Floydada v. Gillam
    (Tex. clv.   App.), 11 S.W. (2d) 761; King v.
    Guerra (Tex. Civ~.App.)~,1 S.W. (2d) 373; Schwan-
    beck v. People ex rel. Mith (Colo.) 24 P 575;
    School District Ifo. 39,~Pattowetoml.e County v.
    v. Shelton (Okla.), 109 P. 67; Murphy v. City of
    Albina (Ore.), 29 P. 353; Mason v. Directors of
    Poor for Erie County (Pa.), 126 Pa. 445; Thompson
    v. West (Neb.), 82 N.W. 13; First National Bank
    of Marlin v. Dupuy (Tex. Civ. App.), 133 S.W. (2d)
    238;.McAlisterv. City of Frost (Tex. Clv. App.),
    131 S.W. (2d) 975."
   Honorable Chas. E. Hemphill, Page 5, NO. o-G68
              Therefore, in view of the foregoing authorities,as
    above stated, It Is our opinion that the act of the commissioners1
   court at a special meeting appointing the justice of the peace with-
   out notice to all the members of the commIssIonera court is void.
            Article 6828, Vernon's Annotated Civil Statutes reads:
             @'Itshall be unlawful for any officer or court
        of this State, or of any municipal division thereof, :-
        to allow, audit, pay or order to be paid, the claim
        of any person for salary, compensation,fees, per- ;
        quisites, emoluments or services, as an officer of
        the State or of any municipal division thereof, ex-
        cept to such person as has'been duly elected such of;
        fleer by the qualified voters of this State, and
        whose election has been ascertainedand certified or
        declared in the manner required by law, or who has
       been appointed such officer by the lawful appointing
        power under the Constitutionand laws of this State,
        or who has been adjudged entitled thereto by a State
        court of competent jurisdiction,and has qualified
       as such officer in accordance with the law. Any per-
        son not so elected, appointed and qualified shall
        not be entitled to receive pay for services as such
       ~offlcer,or to exercise the powers or jurisdiction
        of such officer. The official acts of any person
        claiming a right to exercise such power or jurls-
        diction contrary to the provisions of this law
        shall be void."
             It will be noted that under the provisions of the fore-
going statute that any person who has not been duly elected an officer
by the qualified voters of this State and whose election has been as-
certainedand certified or declared In the manner required by law,
or who has been appointed such officer by the lawful appointing power
Iunderthe Constitutionand laws of the State, or who has been adjudged
entitled thereto by a State court of competent j,urisdlction,and as
qualified as such officer In accordancewith law is entitled to claim
or he paid any salary, compensation,fees, perquisites,emoluments or
services,as an officer of the state or of any municipal division there-
of. It will be further noted that any person not so elected, appointed,
and q'halified'shallnot be entitled to receive pay for services as such
officer, or to exercise the powers or jurisdictionof such officer. There-
fore, as above stated, It is our opinion that the appointment of the jus-
tice of the peace Is void and he is not legally entitled to his salary
as such officer.
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Honorable Chas. E. Hemphill, Page 6, No. 0-4868

            Trusting that the foregoing fully answers your inqulry;.we
are
                                            Yours very truly
                                            ATTORNEY GENERAL OF TEXAS
APPROVED DEC. 9, 1942                       By /II/Ax-dellWllllfuus
                                            Ardell Willlama
GERALDC.MANN                                Aaslstaat
ATTORNEY GENERAL OF TEXAS
APPROVED
OPINION COMMITTEE
By /ii/BWB, CHAIRMAN


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