Can a Texas county fix an invalid appointment by waiting until the appointee becomes eligible?

Plain-English summary

A district attorney asked what happens when a county commissioners court appoints someone county attorney who, at the time, had not lived in the county for the six months the law requires. The county judge had been advised that the problem could be fixed by having the appointee simply wait to be sworn in until she had been a resident for six months. The question was whether that works, or whether the commissioners court has to take fresh formal action once she is eligible.

The Attorney General concluded that waiting does not cure the defect. The Election Code measures eligibility as of "the date the appointment is made," and "appointment" in this sense means the act of nominating or placing someone in office, which happened on a fixed date. The fact that mattered (whether the person had maintained residency for six months before that date) does not change with time. So if the appointment was invalid when made, an effective appointment at a later date, when she does meet the residency requirement, requires the commissioners court to formally reconsider and re-take the vote. The opinion was careful to say it was not deciding whether she actually was a resident; that is a question of fact the office does not resolve in the opinion process. It assumed ineligibility only as a hypothesis to answer the legal question.

The opinion then explained what an invalid appointment does and does not mean in practice. A public official's right to hold office generally cannot be challenged by a collateral attack; the normal remedy is a quo warranto proceeding (the one exception noted, from the Rivera case, is an Open Meetings Act challenge). Even if the appointment was invalid, the official's acts in office would likely be upheld under the de facto officer doctrine, which protects acts done under color of a known appointment where the defect was unknown to the public. And a de facto officer is entitled to be paid for services actually rendered, so the county attorney is entitled to compensation for her work whether or not she was qualified when appointed.

Currency note

This opinion was issued in 2000. 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.

Background and statutory framework

The eligibility rule comes from section 141.001 of the Election Code, which lists the requirements to be appointed to a public elective office, including that the person "have resided continuously . . . in the territory from which the office is elected for six months immediately preceding . . . the date the appointment is made." The office of county attorney is a public elective office under article V, section 21 of the Texas Constitution, so a prior letter opinion (LO-95-086) had already held that a prospective appointee must have been a county resident for the six months before the appointment date. An attempt to appoint someone who does not meet that requirement is invalid.

The decisive interpretive move was reading "appointment." Because the Election Code does not define the term, the opinion gave it its ordinary meaning under section 311.011(a) of the Government Code, drawing on the Oxford English Dictionary's definition as the action of nominating to or placing in an office. Since the only appointment occurred on a date when the residency requirement was not met, the requirement could not retroactively be satisfied by the passage of time. A valid appointment later would have to be a new, formally re-taken action by the commissioners court.

For the consequences, the opinion relied on the de facto officer doctrine as applied in Rivera v. City of Laredo. There, an appointment made in a meeting alleged to violate the Open Meetings Act was held void, yet the official's actions as police chief were not invalidated because he was the chief de facto. Quoting Forwood v. City of Taylor, the opinion described a de facto officer as one who acts under color of a known appointment that is void because of ineligibility, a lack of power in the appointing body, or some defect, where that problem is unknown to the public. On pay, the opinion cited Harris County v. Hunt for the rule that a de facto officer is entitled to compensation for services rendered (though not for services not rendered), and Opinion JM-989, which let the Comptroller pay a visiting judge whose appointment was improper but who had actually served.

Common questions

If a county attorney didn't meet the residency rule when appointed, can she just wait and be sworn in later?
No. The opinion concluded that the defect cannot be cured by waiting, because eligibility is measured as of the date the appointment is made.

What does the county have to do to appoint her properly once she is eligible?
The commissioners court must formally reconsider the matter and re-take the vote. A new, valid appointment is required, not just a delayed swearing-in.

How can someone challenge an official who is allegedly ineligible?
Through a quo warranto proceeding. The opinion explained that a public official's right to office is generally not subject to collateral attack, with the Open Meetings Act being a noted exception.

Are the official's actions void if her appointment was invalid?
Probably not. Under the de facto officer doctrine, her acts would likely be held valid, because she acted under color of a known appointment whose defect was unknown to the public.

Does she get paid for the time she served while her status was in question?
Yes. The opinion concluded a de facto officer is entitled to compensation for services actually rendered, so she is entitled to be paid for her work whether or not she was qualified when appointed.

Citations

Statutes: Tex. Elec. Code Ann. § 141.001(a)(5)(E) (Vernon 1986); Tex. Const. art. V, § 21; Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998). The opinion also relied on prior Attorney General Opinions LO-95-086 and JM-989 (1988).

Cases: Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.-San Antonio 1997, writ denied); Forwood v. City of Taylor, 208 S.W.2d 670 (Tex. Civ. App.-Austin 1948, writ denied); Harris County v. Hunt, 388 S.W.2d 459 (Tex. Civ. App.-Houston [1st Dist.] 1965, no writ).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0191
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0191.pdf

Original opinion text

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

March 9, 2000

The Honorable Becky B. McPherson
District Attorney
110th Judicial District
Floyd County Courthouse
P.O. Box 10
Floydada, Texas 79235-0010

Opinion No. JC-0191

Re: Whether a person who was ineligible when appointed county attorney becomes eligible when she fulfills the residency requirement (RQ-0127-JC)

Dear Ms. McPherson:

You ask whether a person who was ineligible to hold office as county attorney because she had not resided in the county for six months when appointed can be sworn in at the expiration of the six-month period without further action by the commissioners court, or whether the court must take formal action to appoint her when she fulfills the residency requirements. In our view, if an appointment to office is invalid when made because the appointee has failed to fulfill a statutory residency requirement, such an appointment cannot be validated without formally being reconsidered and the vote re-taken by the appointing body.

As you describe the situation prompting your request, the Commissioners Court of Motley County appointed as county attorney a person who, at the time of her appointment, had not been resident in the county for a period of six months. Further, you suggest that when apprised of this, the county judge asserted on advice of counsel that any invalidity could be cured by having the appointee simply wait to be sworn into office until she had been resident in the county for six months.

The Motley County Judge, on the other hand, asserts that these facts are in dispute, that the question of when the person appointed county attorney "established her residence has not been settled," and that there are "many . . . factors a judge could use to clearly decide" that the person in question was in fact "a resident of Motley County, Texas at the time the Motley County Commissioners appointed her the Motley County Attorney." Letter from Laverna M. Price, Motley County Judge, to Honorable John Cornyn, Attorney General (Jan. 25, 2000) (on file with Opinion Committee).

The question of whether any particular person is eligible or ineligible on the basis of residency to serve in an office requires the resolution of questions of fact, an activity in which this office does not engage in the opinion process. We will therefore assume as an hypothesis for the purpose of your inquiry that the person in question had not resided in the county for six months at the time of her appointment. We caution, however, that such an assumption is in no way a decision by this office as to the facts of the particular case.

Pursuant to section 141.001 of the Election Code, "To be eligible to be . . . appointed to, a public elective office . . . a person must . . . have resided continuously . . . in the territory from which the office is elected for six months immediately preceding . . . the date the appointment is made . . . ." TEX. ELEC. CODE ANN. § 141.001(a)(5)(E) (Vernon 1986). The office of county attorney is a "public elective office." TEX. CONST. art. V, § 21. Accordingly, this office has ruled that to be appointed county attorney, "a prospective appointee must have been a resident of the county for six months immediately preceding the date of his or her appointment." Tex. Att'y Gen. LO-95-086, at 1. An attempt to appoint as county attorney a person who did not fulfill this residency requirement would therefore be invalid.

You ask in effect whether such an invalid appointment could be cured by having the county attorney sworn in only when she had in fact been resident in the county for six months. In our view, the language of the statute answers your question in the negative. To be eligible, the appointee must have resided in the county for six months as of "the date the appointment is made." TEX. ELEC. CODE ANN. § 141.001(a)(5)(E) (Vernon 1986). "Appointment" here is clearly the nomination. When, as in this case, a term is undefined by the statute, we are charged to give it its ordinary or common meaning. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998). "Appointment," in this sense, is defined by the Oxford English Dictionary as "[t]he action of nominating to, or placing in, an office . . . ." I OXFORD ENGLISH DICTIONARY 579 (2d ed. 1989). If the only "appointment" occurred on a date certain, when the candidate did not meet the residency requirement, it will remain the case that as of that date the requirement cannot be met. The putative fact at issue, namely, that a particular person had not maintained a particular residency for six months preceding a particular date, is unchanging. An effective appointment at a later date when the candidate satisfied the residency condition, therefore, would require formal reconsideration and action by the commissioners court.

We note, however, that the question of a public official's right to hold his or her office is generally not subject to collateral attack. It has been said that "the only situation in which a public official's office can be challenged in an action other than a quo warranto proceeding is where a violation of the Open Meetings Act is asserted." Rivera v. City of Laredo, 948 S.W.2d 787, 791 (Tex. App.-San Antonio 1997, writ denied). In Rivera, plaintiffs challenged employment actions taken by a person who had been appointed police chief of Laredo, Texas in a city council meeting which plaintiffs alleged violated the Open Meetings Act. While the Court of Appeals held that the Open Meetings Act permitted this collateral challenge, and indeed found that the individual's "appointment as police chief is void," id. at 793, it did not invalidate the employment actions he had taken as chief, on the grounds that he was the chief de facto. Id. at 794. As the opinion explains, a public official is a de facto officer when, inter alia, he acts "under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public." Id. (quoting Forwood v. City of Taylor, 208 S.W.2d 670, 673 (Tex. Civ. App.-Austin 1948, writ denied) (emphasis added)).

Following Rivera, then, it is our view that, should the facts be as you aver, the county attorney's right to office is subject to challenge only by quo warranto proceedings. Should her appointment be invalid, her acts in office would likely be held valid by a court under the de facto officer doctrine. We note further that a de facto officer is entitled to payment for services rendered, though not for services not rendered. Harris County v. Hunt, 388 S.W.2d 459, 465 (Tex. Civ. App.-Houston [1st Dist.] 1965, no writ). Accordingly this office in Attorney General Opinion JM-989 (1988) concluded that the Comptroller of Public Accounts might pay a visiting judge whose appointment was improper, but who had sat and rendered service. Tex. Att'y Gen. Op. No. JM-989 (1988). Whether or not the hypothesis that the Motley County Attorney was ineligible at the time of her appointment is correct, therefore, she is entitled to compensation for services rendered.

SUMMARY

A person who has not resided in a county for six months immediately prior to her appointment as county attorney is ineligible for that office. Should the commissioners court wish to confirm such a person in the office to which such original appointment was invalid, it may do so only by a formal repetition of the appointment at such time as she is eligible for office.

The general remedy for the holding of public office by an ineligible person is a quo warranto proceeding. A public official's right to office is not ordinarily subject to collateral attack. The acts of such a public official may be valid under the de facto officer doctrine. A de facto officer is entitled to compensation for services rendered, and accordingly the Motley County Attorney, whether qualified or not at the time of her appointment, is entitled to such compensation.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee