(,~ ~ J~90g1. ~ COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT MADE BY: Judge Tinley MEETING DATE: November 9, 2009 OFFICE: County Judge TIME PREFERRED: SUBJECT: Consider, discuss and take appropriate action to clarify Commissioners' Court's intent in recent designation of Ilse Bailey as acting County Attorney of Kerr County. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Judge Tinley ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS RQUEST RECEIVED ON: 5:00 PM previous Tuesday @ .M. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. ~,5~,'iE Op ~~ w N ., .. .., q,.i KERR COUNTY ATTORNEY REX EMERSON COUNTY COURTHOUSE, SUITE BA-103 7OO MAIN STREET KERRVILLE, TEXAS 78028 MEMORANDUM To: Kerr County Judge Pat Tinley From: Rex Emerson, Kerr County Attorney Date: October 29, 2009 Re: Appointment to Fill Vacancy in County Attorney Position Issue: A question has been raised as to the Commissioners' Court authority to make an "interim" appointment for the position of Kerr County Attorney to fill the vacancy left by my appointment to the 198th Judicial District Court, and then to possible "un-appoint" that person, either after the March, 2010, primary election, or after the general election in November, 2010, in favor of the winner of such election. The suggestion has been made that once an appointment of any kind has been made, the Court lacks the authority to remove that official and to appoint someone else in his/her place. You have asked me to research this issue to assist the Court to take action in accordance with statutes and legal precedent. Discussion: Jannett conferred with the Texas .Secretary of State, Texas Ethics Commission and the Texas Association of counties. This office called the TDCAA and they referred us to the Secretary of State. All the above agencies referenced the same statutes referenced herein. TEx. Loc. Goer. CODE §87.041(x) provides that the Cotnmission~rs Court may fi11 a vacancy in any of several county offices, including the office of county attorney. The Texas Attorney General has interpreted this provision to mean that the court may, but is not required to hake such an appointment. See AG Op. No. JC-0140 (1990 (commissioners have no duty to fill constable vacancy). TEx. Govr. CODE §601.002 provides that in lieu of such appointment, the First Assistant or Chief Deputy of a public office in which x physical vacancy MAIN NUMBER (830) 792-2220 HOT CHECKS (830) 792-2221 FAx (830) 792-2228 Website: http://wwwco.kerr.tx.us/attorney occurs shall conduct the affairs of the office until a successor qualifies for the office. The authority of the First Assistant to discharge the duties of the office ceases when her successor qualifies for the office. Texas Loc. Goer. CODE §87.041(c) provides that if an appointment is made by the Commissioners Court, the appointee shall hold the office until the next general election. This statute has been interpreted by the Texas Attorney General to mean that a person appointed to fill a vacant county office continues to hold the office from the date of appointment until January i of the following year. See, e.g., AG Ops, No. GA-0263 (2004); JM-579 (1986); MW 521 (1982); and M-742 (1970). In the case of this office, it is essential that the position not be left vacant for even a few days. There are critical, short time frames within which specific types of hearings must be held in juvenile and mental health cases. These hearings cannot be held without the County Attorney or his assistant present. Thus, it was critical for the Court to appoint someone to take my place effective on Friday, October 30, 2009. It was also clear, however, that the Court's intention in appointing Ms. Bailey to the position on an interim basis was to make sure that the office could still function properly, while giving the Court time to carefully consider and review the qualifications of all applicants for the position, to ensure the best person for the job was appointed. The above authority establishes that the Court does not have the authority to make more than one appointment to the position of County Attorney when it becomes vacant tomorrow, October 30, 2009. However, it also appears that the Court's 'interim" appointment of Ms. Bailey could be construed as an appointment pursuant to Goer. CODE §601.002, where she would step in to the vacant position as First Assistant, and not as an "appointee". It is my opinion that either of the two following options would comply with the letter of the law, and will al-low the Court to deNberate as it finds appropriate: A. I hereby appoint Ms. Bailey as my "First Assistant", effective immediately. As Kerr County Attorney, I employ two assistants, neither of which have previously been designated as "First Assistant," although Ms. Bailey is by far the more experienced of the two. If the Court wishes to consider her as continuing in the office as First Assistant pursuant to Govr. Cope §60]..002, she has agreed that under the circumstances, she will consider herself to be acting in that capacity, and not as the appointee entitled to continue on in the position until January 1, 2011. In this event, the Court may proceed as planned, accept applications until November 6, 2009, and make its appointment to the vacant office of County Attorney at some point after that date. B Alternatively, the Court may choose to declare that the appointment made on October 26, 2009, was an appointment to the remainder of the time until January 1, 2011. If the Court chooses this route, no further action will be necessary, other than to announce its intention to have the previously denominated "interim" appointment become the fully effective "final" appointment. Conclusion: The Commissioners Court does not have the authority to make more than one appointment to the vacant position of Kerr County Attorney. Having appointed First Assistant as "interim" County Attorney, the Court may either consider Ms. Bailey to be acting County Attorney pursuant to TEx. Govr. CODE §601.002, and appoint my replacement on the schedule previously announced, or it may consider Ms. Bailey to have been appointed to the position of Kerr County Attorney, which she would then hold until January 1, 2011.