1978-09-05
CITY OF SOUTHLAKE
667 North Carroll Avenue
Southlake,Texas
CITY COUNCIL MEETING AGENDA
September 5,1978 7:30 p.m.
1. ZA 78-7 Zoning Request for William L. Stickley. A 16.13 acre
tract of land out of the John Childress Survey, Abstract 254.
Present zoning is Agricultural. Request is for A-3 Single Family
District. Continuation of Public Hearing.
2. Approval of varience to building code. Buddy Sharp,builder.
1319 Blue Teal Court, Dove Estates. A new residence which sits
two feet to close to the cul-de-sac.
3. Request to annex into the City of Southlake, a 11.76 acre tract
of land out of the J.G. Allen Survey, Abstract 18. This land
is in our extraterritoral jurisdiction. Owners Lloyd D. and
Dora Stepter. Public Hearing.
4. Discussion: Concerning the sewer run off from the "Summerplace
Addition" mini sewer system. Ann Fuqua, adjacent property owner.
5. Public Hearing: Consideration of Revenue Sharing Funds:
9th Entitlement Period, $ 8,393.99.
10th Entitlement Period, $ 21,642.00.
6. Reading of Tax Rate Ordinance No. 245
7. Consideration to purchase "No Parking Signs" for Kimball Road
and East Dove Street. Across from the Sno Cone Stand.
Councilman, A.C. Urbanosky
8. Approval from council to have a "Municiple Survey" made from
the Fire Prevention and Engineering Bureau of Texas.
Fire Chief, Bob Steele.
9. Discussion: Junk Yard on Carroll Road.Glenn Burgess,owner.
Presented by Councilperson, Louise Morrison.
10. Water Department:
a. Purchase an adding machine. Approximately $135.00.
b. Extra telephone for upstairs,for use in water dept.
11. Mayors report.
12. Bills for approval.
*5a. Consideration of repeal of city sales tax on utilities.
I hereby certify that the above agenda was posted on the bulletin
board and on the front door in city hall,667 North Carroll Avenue,
on Friday, September 1,1978 at 1 p.m.
. 0~
* item 5A. was added at 9a.m. on City Secretary
September 5,1978 as an emergency item.,
Ch b 0
ry~ CITY OF SOUTHLAKE, TEXAS
t7 tj7 Minutes of Regular City Council Meeti g
t4 Date :September 5,1978
0
d •7:30 p.m.
H Time
, Place City of Southlake, Council
Chambers.
667 N. Carroll Avenue.
` Southlake, Texas
NAME OF
PAGE 2 INDEX NO. CAP.
MEMBER Ann Fuqua was present and was
1I represented by Kent West. Mr. West
was most concerned due to the fact
4
I I that the easement will sever her 1
property in half and the waste
will stay on the Fuqua Farm. They
i I
ask that the system be buried by
culvert thus allowing her to get
from side to side of her property.
Mayor Hawk indicated that before
the city accepted the system,
council will have a work session
with Dr. Kaluga and Mrs. Fuqua to
work out the problems.
Mayor Hawk reviewed the Revenue REVENUE SHAR-
Sharing Funds. Due to the fact ING, 2ND
that there were no further comment PUBLIC HEARINi
the second public hearing was
closed.
There was discussion amoung counci SALES TAX
persons concerning the repeal of ON UTILITIES
city sales tax on utilities. Ther
was no action taken.
Mayor Hawk read Ordinance # 245. 2ND READING
Tax Rate Ordinance. ORDINANCE
#245. TAX RA'
Councilmen A.C. Urbanosky request-
ed a "No Parking Ordinance" for NO PARKING
Southlake side of Kimball Road by SIGNS FOR
the Snow Cone Stand. After dis- KIMBALL ROAD
cussion, council agreed that Chief
Gaddy contact residents along
Kimball Road from Yates corner to
I I Messina Property, informing them
of the need for "No Parking Signs"
in the area.
(Motion was made and approved that ~~MUNICIPLE
Spager Morrrisso on 1 Ix Ithe City of Southlake have a SURVEY" FOR
Mor ~x i x 1"Municiple Survey" made from the
Urbanosky x FIRE PROTEC-
T ~x Fire Prevention and Engineering TION.
(Bureau of Texas.
f~" I
IMr. dnd Mrs. Morrison presented JUNK YARD
la problem of a junk yard on Carrol ON CARROLL
j iAvenue. They requested the city AVENUE
i
0 0 CITY OF SOUTHLAKE, TEXAS
d tai Minutes of Regular City Cwmcil Meeti q
d V Date ; September 5,1978
Time 7:30 p.m.
y~ Place City of Southlake, Council
Chambers.
667 N. Carroll Avenue.
1 Southlake, Texas
NAME OF 3
EMBER _ PAGE INDEX NO. CAP.
I' II
I ask the owner to move the rubbish
to the back of the house, thus not
i I making the neighborhood look shabby,
oDoug Campbell will go by and look
i
t the area in question, also,
j i review points of law on the subject
He will report to the next meeting.:
Approval was given for the water ADDING
Sparger x x department to purchase an adding MACHINE FOR
Morrison x machine. Approximately $ 135.00. WATER DEPT.
Urbanosky x x
Approval was given to have the
Sparger x ire Chief's telephone relocated
Morrison x x o that both he and the water
Urbanosky x ` x superintendent could use it.
Councilman Urbanosky made a request
for the water department to hook
p the new toilet in the jail.
Under the mayor's report, Mayor MAYOR'S
Hawk gave a report on the Water REPORT
uality Committee. He stated the
committee has come up with three
areas of approach.
1. Pursuit of water from soma
surface source.
2. Drilling of paluxy well.
3. Council authorize a cost
study. Approx. $7,000,
to $ 10,000.
ouncil passed and approved the
ills to be paid. (Attached hereto
nd made apart of.)
he meeting was adjourned by Mayor
I I at Hawk.
i
i Mayo
I
i ! City Secretary
~ i
i*correction made on page 1,first
(paragraph.
1
iUNICI
.b .1
L..J L. A, t-i L 10 } -on ll cst Tot,cr Austin, Tcxas 78701 (5512; 4:78-6 y01
September 5, 1978
i
;
Honorable Martin R. Hawk, Mayor j
City of Southlake I
Box 868
Southlake, Texas 76051 1
Dear Mayor Hawk:
Thank you for your letter of Au-'ust 16, asl~lg certain questions about appointed city
officers. The City of Southlake is a general law city with a population of 1, 0213 ac-
cording to the 1970 Federal Census, operating under Chapters 1-10, Title 28, Revised
Civil Statutes of Texas, 1925, as ainended, with the aldermanic form of government.
Its governing body is the City Couacil composed of a Mayor and five (5) Aldermen
elected from the city at large.
You quoted from Article 1003, Revised Civil Statutes of Texas, 1925, as amended
(Article 11.003, 'Vernon'_s Te-5.as Civil Statutes, 1925, as amended) as follows:
;
"No person other than an elector resid=pat of the city shall be appointed
to any office by the city council. This article does not apply to the ap-
pointment of a city health officer appointed wider Article 4425, Revised
Civil Statutes of Texas, 1925, as amended, by the board of aldermen
of an incorporated town or village containing fewer than 10, 000 inhabitants. "
(Emphasis added)
The Supreme Court of Texas in Kimbrough y. Barnett, 93 Tex. 301, 55 S. W. 120,
122 (1900), approved the following definition of an office:
t
"The term 'office' is defined by Mr. Mechem, in his work on Public Officers
(section 1), thus : 'Public office is the right, authority, and duty created quid
conferred by law, by which, for a given period, either fixed by law, or en-
during at the pleasure of the creating power, an individual is invested with
some portion of the sovereign functions of the government, to be exercised
by him for the benefit of the public.' The correctness of this definition is
nowhere questioned, so far as we know, and it is useless to add supporting
authorities. "
Me above definition was cited in _Delta Electric Construction Company, lnc. , v.
City or San Antonio, 437 S. W. 2d 602 (Tex. Civ. App. , 1969, writ of error refused,
no reversible error) in which Mr. Rex E. Shullanberger, president and oxner of
;
Honorable Martin R. Hawk, Mayor Page 2
Southlake, Texas
September 5, 1978
one-third of the shares of stock in the company, and who was also a member of the city's
Electrical Examining and Supervising Board, was held to be an "officer" of the city,
thereby making his contract with the city null and void.
Your questions and my answers are as follows:
Question 1--Does the word "office" include City Secretary, City Treasurer, City Assessor-
Collector of Taxes, City Attorney, City Engineer, Police Chief, Fire Chief, Assistant Fire
Chief, Building Inspector, City Detective, Water Superintendent, Code Inspectors, Municira.
Judge, Court Clerk, Building Permit Administrator?
Answer--The answer to some of these is easy, while others are perhaps not so easy.
Article 977, R. C. S. (Art. 977, V. T. C. S. lists the following subordinate officers of the
city:
City Treasurer
City Assessor-Collector.
City Secretary
City Attorney
City Marshal (Chief of Police, See Art. 999, V. T. C. S. , as amended)
City Engineer
Art. 977 goes on to say, and such other officers and agents as the city council may
from time to time direct, who may either be appointed or elected as provided by ordinance.
The city council may confer the powers and duties of one or more of these offices upon
other officers of the city.'?
What this means.is that the city council may by ordinance create other "offices" besides
those listed in Art. 977, and may require certain officers to perform the functions of
another office. For example, in many small cities, we find that the city secretary is
also required to be ex officio the city treasurer, assessor-collector, and sometimes
the court clerk.
The Judge of the Municipal Court holds an office. See Articles 1196 as amended, 1197,
1197a, 1198, 1199, and 1199a, V. T. C. S. The Clerk of the Court is also an officer and
holds an office. Article 1200, V. T. C. S.
A Court of Civil Appeals treated the Building Inspector and the Fire Chief as holding civil
offices under Article 1VI, Section 40, Texas Constitution. State ex rel. Beicker v. ~IN'ctie,
481 S. W. 2d 476 (Tex. Civ. App., 1972, no writ history). It would seem that if a BuRdill`-
Inspector holds an office, then a Code Inspector and a Building Permit Administrator wool
fall in the same category as holding an office.
Honorable Martin R. Hawk, Mayor Page 3
Southlake, Texas
September 5, 1978
This leaves the Assistant Fire Chief, City Detective, and Water Superintendent for dis-
cussion.
Normally, a person who bears the titio of "assistant" is not an officer; c:hereas, if the
title is "deputy" and if his principal is in officer, then the deputy is also an officer.
Naill v. State, 129 S. W. 630 (Tex. Crim. App. , 1910); Neeper v. Stewart, 66 S. W. 2d
812 (Tex. Civ. App. , 1933, writ of error refused). Therefore, it is my opinion that the
Assistant Fire Chief does not held an office.
A city detective is a policeman with certain specified duties in connection with investiga-
tion and detection of crime. The question with respect to this position is a hard one. We
know that all policemen are "peace of ficcc-s. " Art. 2. 12 (3), Code of Cri.ninal Procedure.
The question is whether he is an officer of the city in the same sense that other subordinate
officers of the city are treated under Art. 977. In large cities which have civil service
for its policemen and firemen, subordinate policemen in the classified civil service are
often treated as "employees" rather than as "officers." They receive their appointment
as a result of a civil service examination, and are promoted upon length of service and
by examination. Only the Chief of Police is not covered by civil service. In one large
city, some of the policemen live in other nearby suburban cities. On the other hand, the
authority for appointing subordinate police officers in a general law city is found in Art.
998, V. T. C.S., as amended, which refers to their "office. " Art. 993 provides in part:
Such council may, by ordinance, provide that such police officers shall hold their
office at the pleasure of the city council, and for such term as the city council directs.
Therefore, it is my opinion that in a general law city, a city detective, being a police
officer of the city, under Art. 998, holds an office.
The water superintendent may or may not be an officer of the city, depending on his as-
signed functions. If his functions are merely to supervise the operation of the water
system and its employees, then in my opinion he would not be an officer of the city,
since the sale of water is a proprietary function of the city. But if his position is, created
by ordinance, and if he has functions that directly affect individuals as distinguished from
the public at large under the ordinances of the city, then he may be an officer of the city
and hold an office.
Question 2--Is the statute (Art. 1003) mandatory or discretionary with the City Council?
Answer--There are no cases cited under this statute, and only two old opinions by the
Attorney General's office. Both treat the statute as being mandatory. Opinion No. 0-74167
(1946) states that the city health officer must be a resident of the city for six (6) months
prior to his appointment. We know that the 1977 amendment makes exceptions for a town
or village under 10, 000 population. Also, a person is not now required to have resided
within the city for six (6) months in order to be a qualified voter (elector). Dunn v.
Honorable Martin R. Hawk, Mayor Page 4
Southlake, Texas
September 5, 1978
Blumstein, 405 U. S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); ttriatie v v. Clark,
Civil Action No. 5474, U. S. Dist. Ct. Eastern District of Texas, T Icr Division,
March 31, 1972. A voter may vote in the precinct of his residence by the- 30th day
after the registrar of voters has received his application or on the day the registrant
attains the age of 18 years, whichever is later. Art. 5. 13a, Subd. 4, Te:..-as Election
Code. The other opinion, 0-181 (1939), holds that an appointed city; atto,ey rmst re-
side in the city where he holds office. This is still true, with this qualification: \1any
small cities have as their attorney one who lives outside the city limits. V01ile I refer
to such attorney as the "City Attorney", since he is the only attorney the city has, and
everyone in the city may refer to him as the "City Attorney," including City Council,
he is not a real City Attorney, that is, a public officer of the city. In fact, he is the
Attorney for the City. He has no term of office, and the ordinary- attorne -,-client rela-
tionship exists between the attorney and the city. Either party may terzTnate the
relationship at any time. hi other words, the attorney does not hold a p;"lic office,
and his relationship with the city and the city council is contractual, o lv. Loard V.
Como, 137 S. W. 2d 880 (Tex. Civ. App. , 1940, writ of error refused).
In answer to your question, Article 1003, V. T. C. S. , is mandatory.
Question 3 Would the fact of less than full time employment and lack of fixed pay
scale make a difference?
Answer No. In some cities, members of the city council receive no salary, but
nevertheless hold offices. Members of the city's zoning commission usually receive
no salary, but under the definition of an "office" stated in Kimbrou--h v. Barnett , cited
above, they hold offices under the city government.
Question 4 Could a General Law City pass a valid ordinance where some or all of the
"offices" were exempted from "elector resident" requirements ?
Answer If the statutes name and declare a particular position to be an "office," a city
ordinance declaring an exemption from Art. 1003 for that office would be invalid as beiT,g
contrary to the general laws of the State. In addition to the exception stated for city health
officers in towns and villages under 10, 000 population stated in Art. 1003, there is one
other exception. A city manager in a general law city under 5, 000 population, which office
has been created by an election hled for that purpose, need not be a resident of the city at
the time of his appointment. Art. 1164a-6 provides in part:
"The manager shall be chosen solely upon the basis of administrative ability.
Choice shall not be limited by any resident qualifications.
Honorable Martin R. Hawk, Mayor Page 5
Southlake, Texas
September 5, 1978
Question 5 Who would have the right as a party to bring a suit challenging the holding
of an office by someone who was not a resident elector?
Answer Such a suit is a quo warranto suit, and must be brought in the name of the State
of Texas, and the suit must be bro~iglit by the Attorney General of Texas, the District
Attorney, or the County Attorney. Art. 6253, Vernon's Texas Civil Statutes. Williams
v. Castleman, 247 S. W. 263 (Tex. Sut). Ct. , 1922); Austin v. Welch, 480 S. W. 2d 273
(Tex. Civ. App. , 1972, no writ history); Tovah Ind. Sch. Dist. v. Pecos-Barstow Con.
Ind. Sch. Dist. , 497 S. W. 2d 455 (Tex. Civ. App. , 1973, writ of error refused, no re-
versible error; certiorari denied, 415 U. S. 991, 94 S. Ct. 1590, 39 L. Ed. 2d 887).
Thank you again for your letter, Mayor Hawk; it was good to hear from you.
Sincerely,
1
Riley E. Fletcher
Special Counsel
RE F/jp