Untitled Texas Attorney General Opinion ( 1947 )

- R-698
389
OF’FICE OF
_ THE ATTORNEY GE~RAL
AUSTIN. TEXAS
PRICEDANIEL
*IMRYiEY GqieRAL
September 8, 1947
Hon. C. H. Cavness Opinion No. V-371
State Auditor
Capitol Station Re:. The legality,of a state
Austin, Texas employee's~reoeiving and
uslngthe jury fee.ror
serving as a. juror while,
on state payroll.
Dear Sir:
Your request for an opinion upon the above sub-
. ject matter is as .rouows:
., "1 shall great-ly'appreciate your
opinion as to whether it is .legal; un-
aer our Constitution ana Statutes; r0r
a S'tate employee to receive, and use
the proceeds of, rees for'serv$ng as a
juror in the District or CountyICourts
oi'the State while he is also drawing
pay on some State payroll.
Tt appears there is considerable
confusion on this matter. We rind that
some'departments are holding that a State
employee should not accept a jury fee,
others ask them to tarn any such fees they
have received into the State Treasury, and
still others permit them to accept and
keep such fees. In all this of' course
it is assumed that the employee is given
a temporary leave of absenoe without de-
duction in his State pay for such time as
he.nhay be'serving on jury duty.*
Your question involves Sections 33 ana 40 of Ar-
ticle XVI of the Texas Constitution, and Section 2 (14)o
of the CurrentDepartmental Appropriation Bill, being S.B.
391, Chapter 400, Acts Fiftieth Legislature, R. S..1947.
Section 40 of Article ¶I of the Texas Constitu-
tion. reads in part as follows:
- .
Hon. 0. H. Cavness, Page 2, V-371
“No person shall hold or exerolse, at
the same time, more than one civil office of
emolument, except . . - .*
Section 33 of this same Article reads in part
as follows:
“The accounting ofrioers or this State
shall neither draw nor pay a warrant upon the
Treasury in favor of any person, for.salary.or
compensation as agent, orricer or appointee,
~whoholds at the same time any other office or
position of honor, trust orprofit, under this
State or the United States, except as presarib-
ed iii this Constitution.*
Section 2 (14)~ S.B. 391, Chapter 4WJ Aots of
the Ffrtfeth Legislature reads as follows:
“Salary p yments . No salary for which an
aooronrlatlon Ts mada herein shall be Paid to
ayy p&son unless auoh person actually-disaharg-
es assigned auties.R
i
This Department held in Opinion No. 0-6185 that
the County Treasurer was not authorized to aeduot from
the. regular oompensation .oi County employees the amount
paid to such employees for jury servloe while serving on
a petit jury. In a letter opinions-dated May 20, 1938,
addressed to Honorable W. Pat Camp, Assistant Criminal
District Attorney, San. Antonio, Texas, and signed by R.E.
Gray, Assistant Atto~rney GaneraL, It was held’ that a Dep-
uty Tax Assessor-Collector was. entitled to reaelve and
use his pay r0.T serviaes~‘,while serving as a grand juror.
Artic1.e 16, Se&ion 19, of the Texas Constitu-
tion, provides in part:
“The Legislature shall presoribe by-la;
the qualiiiaatfons of grand and petit j~rors.~
servioe except the following persons:
.“. . . .
=2;~-dwawt1 0rri0em- 0r this State and
of the United,States.” See also A’rt.616; C.C.P.
. -
Eon. C. H. Cavness, Page:3,, V-371
~ Ithas been held.many times that officers or
'employees of.the State. or .County are qualified to serve
as grand or petit jurors-. Edgar vs.~State, Crim. App.,
127.S.W. 1053; Mingo vs. State, Crim. App.,, 133 S.W. 882;
Counts vs. Statej.Crim. App.; 181.S,W;723.
~-The holding 0r civio office is growa ror
exempting':e juror on hisapplication, but it is
not.ground .of~challenge." 26 Tex..Jur. 744.
:I$ has been hela'that neither a grand-juror nor
a .petit juror holds.an "office? wlthin~the meaning of the
constitutional and statutory provisions prohibiting the
holding of:two offices., State vs..Graham, 79 S.C. 116,
6O.S.E..431; Territory vsi Hopt, 3 Utah 396, 4 P. 250,255.
In the latter case the court said:
"IniT. US. v.~ Hartwell,; Wall. 393, the court
say:. :tAn offiae isa publicstation or employment,
conferred.by the appointments of government. The
term,embraOesthe ideas .of tenure,, duration, em-
ployment,~ and.dutie~5.Y
"M. Bouvier, in his dictionary, defines
offi~&e:to be' 'aright to .exerciss a public iunc- '
tionor employment, anL-to mhe .the rees~ana
~emoluments .belonging to it..* .i 2
: "'The idea c&an of&e :clearly defined
embraces the i,deas of:.tenure::duration, fees ear.
emoluments, rights and powers, as well as that
of tduty; a public employment'confirmed by ap-
:,. pointmentor government.! Burrill, Law Diet.
:
YIn~20 Johns. ~493, Platt defines orrice to
be 'an employment on behalf of the government in
any station or public trust, notmerely trans-
ient ., .ocoasional, or incidental.'-
"An office is derined.to be 'a right to
exercise a public function or employment, and
to take .the fees and emoluments belonging to
it.'. Streeter v. Rush, 25 Calm. 98; People v.
Stratton, 28 Cal. 388.
"Jury duty :is In the nature of service
due from the,.ci,tizen to the government, neces-
sarily required in then admlnistration~ or its laws.
- .
Hon. C. H. Cavness, Page 4,, V-371
Its character has but little similarity to tenure,
duration, power, and the right to exercise powers
conferred by.the appointment of government, which
are essential characteristics of office, 'and not
mere transient, occasional, ,or incidental.' The
name of the man Is selected, and, with 199 others,
is placed in a box which is denominated the jury-
box, from which it is drawn by chance; and, wlth-
out his knowledge of any previous steps, he is sum-
moned to appear in court to perform the duty of a
juror. It is true, he has a duty of a public na-
ture to perform, and for it he Is compensated out
of the public treasury; but in what other respect
does his position or his duties correspond with
the essential elements of office? He has no cer-
tain term of office. He has no right to, and has
no power to enforce a right to, the performance
..- of any act or service which constitutes the per-
foxmance of official duty. He is liable at any mo-
ment to be discharged by the court from all ser-
vice; and to be excused by either party from serv-
ing in the trial of any cause without consulting
his wishes or interests. The oath he takes, in
its terms land scope, limits his.duty, to the facts 1
of the particular case then on trial, ana is not
the oath required by the laws of this territory,
or by the constitution and laws of the United
States, to be taken by public officers. State v.
Bradley, 48 Corm. 535. The position of a jury-
man is, to a certain extent, a 'place of public
.trust and emolument,' but not in the sense of
these statutory provisions.*
We accordingly-hold that a juror does not holds
a "civil office of emolument" within the meaning of Sec-
tion 40, of Article XVI, of the Texas Constitution.
The next inquiry is whether a person while ser-
ving as a juror holds a wposition of honor, trust or prof-
it, under this State,v within the meaning of Sec. 33 of
Art; XVI, Texas Constitution.
Words and Phrases,
- __ Vol. 33, pages 51'and 53 ae-
fines a upOsltion~ as rollows:
:A 'position' is analogous to an *orri&ef,
in that the duties that pertain to it are ,.l?q-
manent. and certain, but 'it differs froman~o fiae
‘in thatits duties may be nongovernmentar'and
Hon. C. H. Cavness, Page 5, V-371 393
not.assigned tomitby.:any, public law of the
~state.,~ An 'employment' is differentiated.from
both an offioe and a position, in that its
duties, which are nongovernmental;- are neither
: oertain nor permanent. %oard.of-Education of
City. of Bayonne v.:,Bidgood,~Sup.~, 168 A 162,163,
11 N.J.~Misc. 735.,. ,.
RA position isanalogodsto an:ofrice,:in "
that.the duties that.pertaln to it are
and certain, ,and it.airrers from an off 3!=?=
ce n
that itsduties may:be~nongovernmental;ana "
notassigned to itby public law.. Prederioks
.v.'Boardof Health,of Town of rPest Hoboken; ..
82 A. 528; 529,,.82 NJL. 200.". .'~
In Johnston.v. Chambers, (Ga) 98 SiE. 263 (1919)
the police commissionerof~the City of Atlanta by then
name of Chambers was a member of a local draft board at
the time-of his electionand induction into office. The
charter,of the City of Atlanta provided:'
"It shall be,unlawful,for any person hold-
ing,an orrioe or positian-of trust, ;,emolument,
or-regular employment nnder.anoointmentbv then
1 .:President..of the-United State;‘;'..,. . to-oc- .'
oupy or hold any other offlce'or.position of
trust, honor, or emoltunent or regular employ-
ment in or under the city government . . mn
Suit was for mandamus to have Chambers declared ineligi-
ble for the office of police commissioner. Itwas hela~
that membership on the local draftboard was not a "PO- .’
sition of trust" wi,thin the meaning of the language of
the Atlanta.Charter above quoted. The.Supreme Court of
Georgia said:
"The. dutieswhioh these boards were called.
'upon.t.0 perform were of the.most .exalted character,
but-.they were as transitory and ephemeral as they
were exalted; and it was the duty of any citizen
called to membership upon one of these boards whe-
ther a private citizen or the holder of any orrice,
to lay aside all other duties for the hour and re-
spond to the call. The court below properly denied
the applicationin.
In Reading v. ,?daxwell, 52 P. (2d) 1155, the Su-
preme,Court of: Arizona.~held that a person holding appoint-
ment as clerk in the Phoenix Water Department did not
thereby hold a' "position" within the meaning of the term
-
3% Hon. C. H. Cavness, Page 6, V-371
as used in an.,ordlnance classifying employees under Civ-
11 Service.
In Opinion No. O-2798, this office held that
the Criminal District Attorney for Ellis County, Texas
was entitled 'to be paid by the State for professional
services rendered the State in a civil case in which the
State was sued as a defendant. The Criminal District
Attorney came into the civil case at the request of the
Attorney General but he was not an Assistant Attorney
General. The case involved the liability of the State
for damages in the construction of a highway and was not
one the Criminal Districts Attorney was called uponto de-
fend. As an attorney in the case the Criminal District
Attorney was "an officer of the court" but the opinion
held that Section 33, Article XVI of the Constitution
did not prevent the accounting officers Or this State
from, paying the Criminal District Attorney for services
rendered the State in the civil suit.
In Opinion No. O-4313 this office held that a
member of the State B~oard of Education could also serve.
as a member.of an Alien Enemy Hearing Board. In holding
,that membership.on an Alien Enemy Hearing Board 'was not
a vpositionv within the meaning of that term as used in
.Se&ion 33; o,f Article XVI, Texas Constitution, the then
Attorney General said:
"The term 'position' implies, among others,
stability, compensation, duration. The absence,
or relative absence, of these essentials, apper-
tainlngto membership upon an Alien Enemy Hear-
ing Boald,...is manifest from our review of its
origin; status and oharacter. Pa*icularly con-
trolling are these facts: membership uponthe
Board is entirely temporary; its members are
engaged in the doing of an emergency service for
the Government in time of war; the services per-
formed are essentially desultory, sporadic, oo-
caslonal; no oompensatioa is paid and 'there is
an absence of permanency and continuity in the
Board ltself.n
The same observations are applicable to jury
service. It isa duty of citizenship ratherthan a vpo-
sition" freely chosen. Service as a juror totally lacks
the elements of permanency and continuity which are es-
sential.characteristics or an norrice or positionn as
those terms are used in Section 33, of Artiole 16, Texas.
.
Hon. C. H. Cavness, Page 7, V-371
Constitution. We accordingly .hold that it is legal
for a State employee to receive and use the fees re-
ceived for doing jury service.
Whether a States employee can be paid his sal-
ary for time spent serving as a juror is a ract question
which must be determined primarily by the Head of the
Department in which such employee works. Your question
,assumed that *the employee is given a temporary leave of
absence without deduction in his State pay for such time
as he may~be serving on jury duty". We accordingly as-
sume that the Head of the Department in which such em-
ployee works found such person had actually discharged
his assigned duties. Otherwise, his leave of absence
should be without pay.
SUb%dARY
A State employee may receive and use fees
received by him for jury service without any
deductions in his State pay, if such person al-
so discharges the duties assigned to him by the
Head of the Department fin which he works. If
not, leave of absence should be granted without
pay during such jury service. Sec. 33 and 40,
hart XVI, Texas Constitution; Sec. 2114)~ Ch. ,400
S. B. 391, Acts 50th Legislature, 1947.
Yours very truly
AlTOFNF8YGEWERAL
OFTEXAS
Byyy*
F gan Dickson
First Assistant
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