Could a former housing authority commissioner or a sitting school board member be appointed to a Texas fire and police civil service commission?

Texas AG Opinion JM-874: Civil Service Commissioner Rules

Plain-English summary

A Texarkana criminal district attorney asked about two members of the Texarkana fire fighters' and police officers' civil service commission. The chairman had served on the Texarkana housing authority until May 1986 and joined the commission about three months later. Another member was a sitting school district trustee when he was appointed in May 1987. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

The governing statute at the time, section 3(b) of article 1269m, said commissioners "shall not have held any public office within the preceding three (3) years." The Attorney General concluded that both men were ineligible. A housing commissioner is a public officer, and so is a school district trustee, so each had held public office inside the three-year window. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

That did not undo the commission's work. Relying on Vick v. City of Waco, which involved the same problem on the Waco commission, the AG said the challenged members were de facto officers acting under color of authority, and acts performed by a de facto officer under color of office are valid. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Removing them was a separate matter with a single route. The opinion identified quo warranto as the exclusive remedy to test an officer's right to hold office, brought by the Attorney General or by a county or district attorney. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was a city housing authority seat a "public office" for this purpose?

Yes. The opinion said a housing commissioner "is regarded as a public officer," citing Attorney General Opinion M-1096 (1972) and Housing Authority of Harlingen v. State ex rel. Velasquez. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Did serving on a school board disqualify someone the same way?

Yes. The opinion said that like a housing commissioner, a school district trustee holds public office, citing Attorney General Opinion V-834 (1949) and the Education Code provision requiring elections for trustees of independent school districts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Were the commission's past decisions void?

No. In Vick v. City of Waco, two of three commissioners had held public office within the preceding three years, and the court still upheld the commission's order because they were "de facto members, acting under the color of authority" whose acts were immune from collateral attack. The AG applied the same reasoning here. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

What is a de facto officer?

The opinion defined it as one who, by his acts, has the appearance of holding the office he has assumed but who in fact does not validly hold it, citing Germany v. Pope and City of Christine v. Johnson. It added that the label can attach to someone holding office under an appointment later invalidated because the appointee was ineligible. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

How could an ineligible commissioner be removed?

Through quo warranto, which the opinion called the exclusive remedy. The Attorney General or a county or district attorney could initiate it under Civil Practice and Remedies Code section 66.002. If the court found the person held office unlawfully, section 66.003 let it remove the individual, charge him with the costs of prosecution, and impose a fine the court deemed appropriate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Background and statutory framework

Both appointments were made while fire fighters' and police officers' civil service commissions were governed by article 1269m, V.T.C.S. Section 3(b) required commissioners to be of good moral character, citizens of the United States, resident citizens of the city for which they are appointed, residents of that city for more than three years, over the age of twenty-five, and not to have held any public office within the preceding three years. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

That statute was enacted at Acts 1985, 69th Leg., ch. 910, § 1, at 3046 and repealed by Acts 1987, 70th Leg., ch. 149, § 49(1), at 2544. The opinion noted that the law in effect when it wrote maintained the same requirements in slightly different form at Local Government Code section 143.006(c). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Citations and references

• V.T.C.S. art. 1269m, § 3(b) (Acts 1985, 69th Leg., ch. 910, § 1, at 3046, repealed by Acts 1987, 70th Leg., ch. 149, § 49(1), at 2544)
• Local Gov't Code § 143.006(c)
• Civ. Prac. and Rem. Code § 66.002
• Civ. Prac. and Rem. Code § 66.003
• Educ. Code § 23.08
• Attorney General Opinion M-1096 (1972)
• Attorney General Opinion V-834 (1949)
• Housing Authority of Harlingen v. State ex rel. Velasquez, 539 S.W.2d 911, 915 (Tex. Civ. App. - Corpus Christi 1976, writ ref'd n.r.e.)
• Vick v. City of Waco, 614 S.W.2d 861 (Tex. Civ. App. - Waco 1981, writ ref'd n.r.e.)
• Germany v. Pope, 222 S.W.2d 172, 176 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.)
• City of Christine v. Johnson, 255 S.W. 629 (Tex. Civ. App. - San Antonio 1923, no writ)
• Norton v. Shelby County, 118 U.S. 425, 446 (1886)
• Shriber v. Culberson, 31 S.W.2d 659, 661 (Tex. Civ. App. - Waco 1930, no writ)
• 39 Tex. Jur. 2d Municipal Corporations § 144; 67 C.J.S. Officers §§ 269-70

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0874
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0874.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

March 18, 1988

JIM MATTOX
ATTORNEY GENERAL

Honorable John F. Miller, Jr.
Criminal District Attorney
P. O. Box 3030
Texarkana, Texas 75504

Opinion No. JM-874

Re: Qualifications of civil service commissioners (RQ-1340)

Dear Mr. Miller:

You ask several questions regarding the Fire Fighters' and Police Officers' Civil Service Commission in Texarkana, Texas. You indicate that the current chairman of the commission served on the Texarkana, Texas, Housing Authority until May, 1986, and was appointed to the civil service commission approximately three months later. In addition, one of the other two civil service commissioners held the office of school district trustee at the time of his appointment to the commission in May, 1987.

Both of those appointments were made while fire fighters' and police officers' civil service commissions were governed by article 1269m, V.T.C.S. Section 3(b) of that statute set out the following qualifications for commissioners:

All such Commissioners shall be of good moral character, citizens of the United States, resident citizens of the particular city for which they are appointed, shall have resided in said city for a period of more than three (3) years, shall each be over the age of twenty-five (25) years, and shall not have held any public office within the preceding three (3) years.

(Emphasis added.)

Acts 1985, 69th Leg., ch. 910, § 1, at 3046, repealed by Acts 1987, 70th Leg., ch. 149, § 49(1), at 2544. Current law maintains the same requirements, but in slightly different form. See Local Gov't Code § 143.006(c).

You first ask whether the underscored requirement disqualifies the present chairman of the commission. A housing commissioner is regarded as a public officer. Attorney General Opinion M-1096 (1972); see also Housing Authority of Harlingen v. State ex rel. Velasquez, 539 S.W.2d 911, 915 (Tex. Civ. App. - Corpus Christi 1976, writ ref'd n.r.e.). Thus, because the individual in question held public office within the three years prior to August, 1986, he was ineligible for appointment to the commission at that time.

You next ask whether the same requirement also disqualifies the commissioner who served as an elected school board member at the time of his appointment. Like a housing commissioner, a school district trustee holds public office. Attorney General Opinion V-834 (1949); see Educ. Code § 23.08 (requiring elections for trustees of independent school districts). Thus, like the former housing commissioner, the school board member was ineligible for appointment to the civil service commission.

Your third question relates to the validity of actions taken by a commission during the tenure of an appointee subsequently found ineligible. The identical question was presented in Vick v. City of Waco, 614 S.W.2d 861 (Tex. Civ. App. - Waco 1981, writ ref'd n.r.e.). There, a firemen's and policemen's civil service commission had dismissed an officer of the Waco Police Department. The dismissed officer brought suit to compel reinstatement, claiming, inter alia, that the commission's decision was invalid because the commission was not composed of a quorum of duly qualified commissioners. The plaintiff charged, and the court acknowledged, that two of the three commissioners had held public office within the three years preceding their appointments. Nonetheless, the court upheld the commission's order, declaring that the challenged commissioners were "de facto members, acting under the color of authority," and that their acts were therefore immune from collateral attack. 614 S.W.2d at 864.

A de facto officer is one who, by his acts, has the appearance of holding the office he has assumed, but who in fact does not validly hold the office. Germany v. Pope, 222 S.W.2d 172, 176 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.); City of Christine v. Johnson, 255 S.W. 629 (Tex. Civ. App. - San Antonio 1923, no writ). The designation of "de facto officer" may attach to one who holds office under color of an appointment that is subsequently invalidated on the grounds that the appointee was ineligible. Norton v. Shelby County, 118 U.S. 425, 446 (1886); Ex parte Tracey, 93 S.W. 538, 542 (Tex. Crim. App. 1905). Acts performed by a de facto officer under color of office are considered valid. Norton v. Shelby County, 118 U.S. at 441-42; Germany v. Pope, 222 S.W.2d at 176. See generally 39 Tex. Jur. 2d Municipal Corporations § 144 and cases cited therein; 67 C.J.S. Officers §§ 269-70.

Here, as in Vick v. City of Waco, the challenged officers were acting under color of authority. Thus, each was a de facto officer, and "as such his acts are as binding as though he was an officer de jure." Shriber v. Culberson, 31 S.W.2d 659, 661 (Tex. Civ. App. - Waco 1930, no writ).

Your fourth and fifth questions relate to the procedure for removal of the officers in question. As noted by the court in Vick v. City of Waco, 614 S.W.2d at 864, a quo warranto proceeding is the exclusive remedy to test the right of an officer to hold office. An action in quo warranto may be initiated by the Attorney General or by a county or district attorney. Civ. Prac. and Rem. Code § 66.002. If the court finds that the subject of the action holds office unlawfully, the court may remove the individual from office, charge him with the costs of prosecution, and impose such fine as the court deems appropriate. Civ. Prac. and Rem. Code § 66.003.

SUMMARY

Section 3(b) of former article 1269m, V.T.C.S. (now section 143.006 of the Local Government Code), provides that an appointee to a Fire Fighters' and Police Officers' Civil Service Commission must not have held public office within the preceding three years. That provision rendered ineligible both (1) an individual who had recently served on a municipal housing authority; and (2) an individual who had recently been elected to a local school board.

Acts of de facto officers are valid.

An action in quo warranto is the exclusive remedy to challenge an officer's right to continue to hold office.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General