Untitled Texas Attorney General Opinion ( 1957 )

-a .
THEA~TORNEY GENERAL
OF TEXAS
WI& WILSON
ATTGRNEYGENEI+AI.
July 30, 1957
Honorable Jack Ross Opinion No. W-174
Chairman
Board of Pardons and Re: Eligibility of a mem-
Paroles ber of the 55th Legisla-
Austin, Texas ture for appointment by
the Board of Pardons and
Paroles as Director of
the Division of Parole
Supervision under the
provisions of Senate Bill
154, 55th Legislature,
Regular Session, 1957,
Dear Mr. Ross: and related matters.
We have your letter asking the following questions
with regard to the provisions of Senate Bill No. 154,
Acts of the 55th Legislature, 1957.
"1. In view of Article III, Section 18
of the Constitution of the State of Texas
and assuming that an applicant who Is now a
member of the 55th Legislature shall resign
that office, is he eligible for appointment
by the Board of Pardons and Paroles as Direc-
tor of the Division of Parole Supervision dur-
ing the term of office to which he was elected
a member of the 55th Le$islature?
"2. The Division of Parole Supervision is
created for the discharge of the responsibility
for the investigation and supervision of all
prisoners released on parole. The Director
will be the executive officer of the Division.
Article IV, Section 28, provides that no person
may be employed as a parole officer or super-
visor, or be responsible for Investigations,
surveillance, or supervision of persons on
parole unless he meets certain qualifications
set out in the Act. Must the Director of the
Division of Parole Supervision meet the quall-
fications set out in the second paragraph of
Article IV, Section 28 of Senate Bill No. 154?"
Hon. Jack Ross, Page 2 (WW-174)
Section 18,Article III of the Texas Constitution
reads as follows:
'NO Senator or Representative shall,
during the term for which he may be elected,
be eligible to any civil office of profit
under this State, which shall have been
created, or the emoluments of which may have
been Increased during such term; no member of
either House shall, during the term for which
he is elected, be eligible to any office or
place, the appointment to which may be made,
in whole or in part, by either branch of the
Legislature; and no member of either House
shall vote for any other member for any
office whatever, which may be filled by a
vote of the Legislature, except in such
cases as are in this Constitution provided.
Nor shall any member of the Legislature be
interested, either directly or Indirectly,
in any contract with the State or any county
thereof, authorized by any law passed during
the term for which he shall have been elected."
In order to answer your first question it is neces-
sary to determine (1) whether the Director of the Dlvl-
slon of Parole Supervision Is a civil office of profit,
and if not (2) whether the employment of the Director
is by virtue of a contract with the State as mentioned
in the last sentence of the above quoted provision of
the Constitution, Article III, Section 18.
We have reached the aonclusion that the Director
is not a civil office of profit for the reasons herein-
after set out.
It is well settled that the mere fact that a
statute might mention a position as an office does not
necessarily mean that it Is In fact an office. There
are many decisions as to what constitutes an office
or officer as distinguished from an employee, such as
Klmbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900)
In which the Court said:
"The term 'office' Is defined by Mr.
Mechem in his work on Public Officers (sec-
tion II, thus: 'Public office is the right,
authority, and duty created and conferred by
law, by which, for a given period, either
fixed by law, or enduring at the pleasure of
Hon. Jack Ross, Page 3 (WW-174)
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 sup-
porting authorities."
The latest decision we find by the Supreme Court
of Texas on the subject is Aldine Independent School
District v. Standley 154 Tex. 547, 260 S W. 2d 578
(1955) In that cas;! the Court held thai the assessor-
collector of taxes of'an independent school district
Is not a public officer, even though the statute (Arti-
cle 2791 V.A.C.S.) "created the office of assessor and
collector". The collector was appointed by the Board
of Trustees for a period of one year beginning February
1, 1950, at a monthly salary, and he took the proper
oath of office and gave the bond required by the Board.
About two months later, the Board adopted a resolution
extending the contract one year from February 1, 1951.
On June 29, 1951, the Board adopted a resolution "firing"
the collector. After exhausting his administrative
remedies, plaintiff (assessor and collector) filed suit
claiming that he is an officer under Article XVI, Sec-
tion 30 of the Constitution and that as such his term
of office is fixed at two years, and that the Board
had no power to discharge him except as provided by
Article V, Section 24 of the Constitution. The Court
held that he was not an officer, and after reviewing
the statutes pertaining to school boards approved the
language in Dunbar v. Brazoria County, 224 S.W.2d 739
(error refused) in which that Court had said:
"'From the above authorities, it is
apparent, we think, that the determining
factor which distinguishes a public officer
from an employee is whether any sovereign
function of the government is conferred upon
the individual to be exercised bv him for
the benefit of the public largely indepen-
dent of the control of others.'"
Let us now examine and see what separate and
independent "sovereign functions of the government"
are conferred upon the Director "to be exercised by
him for the benefit of the public" and "largely
independent of the control of others".
Hon. Jack Ross, Page 4 (WW-174)
When we examine the statute as a whole, we
find that the sovereign functi!ansof government con-
tained in said Act are vested solely in the Board.
Section 1 of the Act provides:
It is also the:intent of this Act
to provide for the release of persons on
parole and for the method thereof, to de-
signate the Board of Pardons and Paroles
as the responsible agency of state govern-
ment to recommend determination of paroles
and to further designate the Board of Pardons
and Paroles as responsible for the investlga-
tion and supervision of persons released on
parole."
We see, then, that at the very beginning of the
Act it Is shown that the Board Is to be the res onslble
of the State government for carrying -+k-
ou
;*i .ons of the Act pertaining to the parole of per-
ions. This very sentence of the Act excludes the idea
that the Director is vested with sovereign functions
of government and on the contrary shows that he is
to be an employee of the Board to assist It in carrying
out its responsibility placed upon It by Section 1 of
the Act. ~If the Director could exercise sovereign
functions Independent of the Board, then the provision
of Section 1 placing responsibility on the Board would
fail.
Section 2h of the Act defines "Director" as the
Director of the Division of Parole Supervision, and the
word "Director" is not mentioned again until Section 28.
Section 26 of the Act provides:
"Sec. 26. The Board of Pardons and
Paroles shall have general responsibility
for the investigation and supervision of
all prisoners released on parole. For the
discharge of this responsibility, there is
hereby created with the Board of Pardons
and Paroles a Division of Parole Supervision.
Subject to the general direction of the
Board of Pardons and Paroles, the Division
of Parole Supervision Including its field
staff shall be responsible for obtaining
and assembling any facts the Board of Pardons
and Paroles may desire in considering parole
eligibility, and for investigating and super-
vising paroled prisoners to see that the
.’
Hon. Jack Ross, Page 5 (WW-174)
conditions of parole are complied with,
and for making such periodic reports on
the progress of parolees as the Board may
desire,
We again see that the Board is to have the re-
sponsibility as to paroled prisoners, and the Division
to be headed by the Director (Section 28)' Is to assist
'the Board. Notice that the statute says that the
'Division is created "with the Board". This section
also says that subject to the general direction of the
Board, the Division including Its field staff shall do
certain things, and make such periodic reports as the
Board,may desire. Itis clear that the Board is not
deprived of its sovereign governmental functions, and
that the Division is merely to assist the Board in
,carrying out its responsibility placed upon it by
the Act.
Section 28 of the Act provides:
"Sec. 28. Salaries of all employees
of the Division of Parole Supervision shall
be governed by Appropriation Acts of the
Legislature. The Board of Pardons and
Paroles shall appoint a Director of the
Division, and all other employees'shall
be selected by the Director,
such general policies and regula
v ionsto
as
'the Board ,may,approve."
We see from the above the section Itself men-
tions'the Director'as an "employee". We realize
that this alone does not make him necessarily an
"employee" rather than an officer, but it can be
.,,consideredthatthe Legislature might have intended
'that he should be an employee rather than an officer,
We say, then, that down through the above quoted part
of Section 28 every sentence and word of the Act
clearly indicates that the Division under the dlrec-
tion of the Directon:is not vested with sovereign
functions of government independent of the Board and
that every act of the Director is subject to the
approval of the Board. The remaining portions of
Section 28 apply only',tothe,appointment of parole
officers and givesthe Director authority to prescribe
additional qualifications to,those stated "with the
approval of the Board" which means that the Board,
and not the Director, is vested with the sovereign
functions of government.
Hon. Jack Ross, Page 6 (``-174)
Let us notice the remaining portions of the
Act pertaining to the Director. It is true that
Section 30 of the Act mentions the 'terms of office"
of the Director, but this fact does not show that
he is vested with any sovereign power for the benefit
of the public and "largely independent" of the control
of the Board as stated in the Aldine case, supra. We
have already seen that under well settled rules the
mere fact that a statute ma'y mention the position as
an office does not necessarily mean that it is a public
office.
It is also true that Section 30 OS the Act pro-
vides for the approval by the Director of the members
of the voluntary parole boards who are appointed by
the Chairman. Even though the statute does not require
the Board to approve the appointments, we cannot say
that this is the exercise of a sovereign function of
government, and even if it should be construed as the
exercise of a sovereign function, such act and all
others mentioned in Sections 30 and 31 would not be
exercised "largely Independent" of the Board.
We see, then, that when we examine the statute
as a whole we find that it Is clearly the intention
to place the responsibility on the Board Itself, and
that none of the functions of the Director of the
Division are sovereign functions or exercised "largely
independent" of the Board.
Independently of any wording of the statute we
call attention to the fact that the Act does not pro-
vide for any tenure of office for the Director. He
is not required to take an oath. He is not required
to give bond. These are usual requirements, though
not necessary, of an officer. However, we believe
that the fact that Section 28 calls him an "employee"
and the fact that he does not take an oath and in
performing practically every one of his duties, he
is subject to the control of the Board, and since the
Director has very little authority independent of the
Board, we believe he is not an officer.
While the statute says nothing about the removal
of the Director, we believe that in view of the fact
that no term is set for the duration of his employment,
he could be removed by the Board at any time. If he
should be an officer, he cannot be removed except by
: .
Hon. Jack Ross, Page 7 (WW-174)
trial as provided by Article XV, Section 7 of the
Constitution. See Knox v. Johnson, 141 S.W.2d 698
(Tex. C.C.A. 1940, writ of error refused). We do not
believe that it can be contended that the Board could
not remove the Director at any time. If this is true,
then he cannot be an officer.
In Attorney General's Opinion O-6458 (1945) it
was held that the executive officer of the State Board
of Vocational Education was not an officer, but was
an employee and a member of the Legislature that had
passed the Act creating the position was not disquali-
fied from being appointed as such Director.
In Attorney General's Opinion v-308 (1947) it
was held that the Executive Secretary of the Board of
Regents for State Colleges was not an officer, but
that he was an employee, and a member of the Legisla-
ture that created the position was not disqualified
from holding it.
In Attorney General's Opinion WW-190 (1957) it
was held that the position of Secretary-Director of
the Teachers Retirement System is not an officer, but
that he is an employee.
A reference to the history of the Act under
consideration shows that Senate Bill 154 as originally
introduced and reported favorably, provided an entirely
different set-up from that contained in the Act that
was finally passed and which became a law.
Section 1 of this original Bill contained a
provision which is important in determining legislative
intent. The Act as originally considered clearly did
make the Director an officer rather than an employee.
The fact that the Legislature rejected the following
sentence in the original draft of Section 1 and in
fact turned around and enacted the opposite is almost
conclusive of the question. The rejected sentence
reads as follows:
"Recognizing that determining the proper
qualifications for parole, and the conditions
of parole, to be quasi-judicial considera-
tions suitable to a State agency such as the
Board of Pardons and Paroles, whereas the
day-to-day supervision of parolees is a quite
different kind of administrative responsibility,
it is the further purpose of this Act to place
Hon. Jack Ross, Page 8 (``-174)
the determination of paroles in said Board,
and the case-work supervision of parolees in
a separate division of the Executive Depart-
ment under the general supervision of the
Governor."
The original Bill in Section 26 again provided
that the Governor shall have general responsibility for
the investigation and supervision of all parolees, and
also created a Division with the Executive Department
known as Division of Parole Supervision, and further
provided that subject to the general direction of the
Governor this Division and its staff shall be responsi-
ble for the supervision of parolees.
Section 28 of the original Bill provided that the
Governor shall appoint the Director, and that other
employees selected shall be subject to the general
policies and regulations of the Governor, and provided
that the Governor should approve any additional quali-
fications of employees the Director might make.
We see, then, that under the original Bill as
introduced it was provided that the Board was to be a
quasi-judicial body rather than an administrative body.
However, the Bill as passed as seen from Section 1
above quoted makes the Board an administrative body and
rejects all idea of having the Board to be only a quasi-
judicial body and the new Division in the Executive
Department to be the administrative body. We see, as
shown by Section 1 of the final Act, the entire respon-
sibility was placed on the Board for administration
which was divided under the original Act. If this
responsibility is to be placed on the Board, then if
the Director should have separate sovereign functions
of government the Board certainly could not carry out
its administrative responsibility.
In view of what we have said, it is our opinion
that the Director is not an officer, and, therefore,
a member of the 55th Legislature which enacted Senate
Bill 154, if he resigns as a member of the Legislature,
will not be disqualified under the first sentence of
Article III, Section 18 of the Constitution from
being appointed Director.
The other matter to determine in answering
the first question is whether a contract of employment
is a "contract with the State" as provided in the
second and last sentence of Section 18, Article III
. . .
Hon. Jack Ross, Page 9 (WW-174)
of the Constitution.
We are of the opinion that said sentence is
not intended to cover such contracts. The first clause
of the first sentence of this provision of the Consti-
tution mentions only "a civil office of profit", and
does not mention anything about an "employee" as
distinguished from an "officer," and, therefore, under
said first clause an employee would not be disqualified.
The second clause of the first sentence reads
as follows:
‘I
no member of either House shall,
d&i& the term for which he is elected,
be eligible to any office or place, the
appointment to which may be made, in whole
or in part, bx either branch of the Legis-
lature; o O o
It is to be noticed that the second clause above
quoted not only includes the word "office" but also
includes the word "place" which we construe to mean any
position of employment other than an office. This
clause does not disqualify a member of the Legislature
from accepting a "place" of employment which was created
by the Legislature of which he was a member. It
merely provides that the Legislator is not eligible
during the term for which he was elected to such office
or place when the appointment may be made in whole or
in part by either branch of the Legislature. It
appears, then, that the Constitution intended to cover
the field of holding office and employment In the
first two clauses of the section of the Constitution.
Why did the Legislature in the first clause intend to
disqualify members only from holding office if it
was also intended to disqualify them from holding a
position of employment. It would have been just as
easy to add the word "place" after the word 'office"
in the first clause as it was to add that word in the
second clause, The fact that the first clause dis-
qualifies legislators only from an office and the
second clause disqualifies them not only from an
office, but from 'employment" only when the appoint-
ment Is made by the Legislature, shows that it was
not intended to disqualify an "employee" where he
is to be appointed by someone other than the Legis-
lature. In other words, we believe that the first
two clauses of Article III, Section 18 are the sole
. .
Hon. Jack Ross, Page 10 (WW-174)
provisions of the Constitution which were intended to
disqualify members of the Legislature from accepting
an office or position of employment, and that the last
sentence of said provision, therefore, was intended to
cover a new field, or a contract of a different nature,
from that provided in the first two clauses.
The last sentence of said Article III, Section
18 reads as follows:
11
Nor shall any member of the Legis-
lature be interested, either directly or
indirectly, in any contract with the State,
or any county thereof, authorized by any
law passed during the term for which he
shall have been elected."
We believe that this sentence is not to be con-
strued as applying to a contract of employment, but
was intended to cover only what we would customarily
call a contract to sell something or to perform some
service other than as a regular employee of the State
or county. As stated above, we believe that the
Constitution disposed of both officers and employees
in the first two clauses of the first sentence, and,
therefore, officers and contracts of employment are
excluded from the last sentence.
Under the last sentence, a Legislator is
forever barred from entering into a contract with
either the State or county if It was authorized by
the Legislature of which he was a member regardless
of the number of years that might have intervened.
See Lillard v. Freestone County, 57 S.W. 338 (Tex.
C.C.A. 1900). In that case, the contract was to
publish a delinquent tax list of the county made
with the man who was a member of the Legislature
when the contract was authorized but whose term had
expired, and the contract was held to be void.
Under the first clause of the constitutional
provision in question a member of the Legislature
may vote to create an office, either State or county,
and he will be eligible to hold that office after his
term as a member of the Legislature expires. We say
this for the reason that the Courts have held that
an officer does not hold office by virtue of a con-
tract, but merely holds it by virtue of law. See
34 Tex. Jur. p. 324 Section 3..
.” . .
Hon. Jack Ross, Page 11 (WW-174)
If we are going to say that the word "contract"
in the last sentence includes a contract of employment
then we will have to say that a member of the Leglsla-
ture may vote to create an office and will be eligible
for It after his term expires, but if he votes to
create a minor position of employment in some department
of the State or with a county, he is forever barred from
holding such minor position of employment. We do not
believe that the Constitution ever intended such situa-
tion, and, therefore, we believe that the word "contract"
does not include a contract of employment.
It is, therefore, our view that a member of the
55th Legislature that enacted Senate Bill 154 Is not
disqualified by the last sentence of Article III,
Section 18 of the Constitution from accepting the place
of Director,
The answer to your second question involves a
construction of a part of Section 28 of the Act read-
ing as follows:
"It is expressly provided, however, that
no person may be employed as a parole officer
or supervisor, or be responsible for the
lnveatigations, surveillance, or supervision
of nersons on oarole. unless he meets the
foliowing qualifications together with any
other qualifications that may be specified
y the Director of the Division, with the
approval of the Board of Pardons and Parole:s:
26 to 55 years of age, with four years of
successfully completed education In an
accredited college or university, and two
years of full time paid employment in respon-
sible correctional work with adults or
juveniles, social welfare work, teaching,
or personnel work."
If it had been intended that the Director should
have the same qualifications as the parole officers and
supervisors, it would have been an easy matter to add
the word "Director", Under the well known rule of
ejusdem generis only such persons who are to perform
the duties of parole officers and supervisors are
included. It is true that the Director is the head
of the Division and assists the Board in the perfor-
mance of its duties, but the duties of the Director
do not require him to do field work such as is
required of the parole officers who will report to
. . ‘4.
Hon. Jack Ross, Page 12 (Wh'-174)
the Director. They are the employees who will come in
contact with the parolees and the Legislature no doubt
thought that only a man of good education and young and
alert not to exceed 55 years of age should do this work.
Since only one person is to be appointed Dlrec-
tar, the Board can screen all applicants for such
position and decide whether a person 56 years of age
is too old and also decide whether he possess the
qualifications the Board believes are necessary to
carry on the work of Director.
In view of the above, it is our opinion that
the Director need not necessarily possess the quali-
fications set out In Section 28 for parole officers
and supervIsors, but that the Board Is the sole judge
of the qualifications.
SUMMARY
A member of the 55th Legislature that
enacted Senate Bill 154 Is not dis-
qualified as being appointed Director
of the Division of Parole Supervision
by virtue of the provisions of Article
III, Section 18 of the Constitution of
Texas D
The Director to be appointed by the
Board of Pardons and Paroles need not
possess the qualifications required of
parole officers of supervisors.
Very truly yours,
WILL WILSON
Attornev General of Texas
APPROVED:
OPINION COMMITTEE: *ad&handler
Larry Jones, Chairman
Milton Richardson
Joe G. Rollins
HGC:jas