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1978-09-05 CC Packet1 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