Untitled Texas Attorney General Opinion ( 1943 )

HonorableMarvin Leonard,Chairman
State Board of PublicVelfere
Austin,Texas i?
Dear Mr. Leonard: OpinionNo. 0-5085
Fie: Characterof positionof
executivedirectorof De-
partmentof Public Welfare,
as public office.
This will acknowledgereceiptof your letter requestingan
opinionof this departmentupon the questionwhetherthe ExecutiveDi-
rector of the State Departmentof Public Welfare holds an office,rath-
er than an employment,under the State, so as to come within the provi-
sions of Article 16, Section30, of the Texas Constitution.
Article 16, Section'30,of the Constitutionprovidesthat:
"The durationof all officesnot fixed by this Consti-
tution shall never exceedtwo years. . . .l(
Section3 of House Bill 611, Acts of the 47th Legislature,
Regular Session,provides:
"Sec. 3. (1) The Board shall selectand appoint,with
the advice and consentof two thirds of the membershipof
the Senate,an ExecutiveDirectorof the Departmentof Pub-
lic Welfare,who shall be the executiveand administrative
officerof the State Departmentand shall dischargeall ad-
ministrativeand executivefunctionsof the State Department.
Such person so selectedand appointedshallbe not less than
thirty-five(35) years of age at the date of his appointment,
and shall have been a residentcitizenof the State of Texas
for at least ten (10) years precedingthe date of his appoint-
ment, and shall not have been an occupantof any elective
State officeat the time of his appointment,nor have occu-
pied any electiveState office duringthe six (6) months next
precedingthe date of his said appointment. He shall be a
person of demonstratedexecutiveabilityand extensiveex-
periencein publicwelfareadministration, or shall have had
experienceas an executiveor administrator, and shall serve
at the pleasureof the State Board. Provided,however,that
the presentExecutiveDirectorwho has previouslybeen ap-
HonorableMarvin Leonard,Page 2 (0-5085)
pointedby the State Board and confirmedby the Senate shall
continueto hold office for euch period of time as may be de-
terminedby the State Board.
"(2) The Board shall be responeiblefor the adoptionof
all policies,rules, and regulationsfor the governmentof the
State Departmentof Public Welfare.
"(3) The Board, its agents,representatives, and employ-
ees shall constitutethe State Departmentof Public Welfare
and whenever,by any of the provisionsof this Act, or of any
other Act, any right,power, or duty so impoeedor conferred
shall be possessedand exercisedby the ExecutiveDirectorun-
less any such right,power, or duty is specificallydelegated
to the duly appointedagents or employeesof such department,
or any of them, by this Act or by an appropriaterule, regula-
tion, or order of the State Board."
In our opinion,the positionof the ExecutiveDirectorthus
providedis clearlya "publicoffice".
Elementswhich distinguisha public office from a mere public
employmentare stated in the case of State of Montana,ex rel Julius
Barney Y. R. B. Bawkins,Secretaryof State, et al, 257 P. 411, 53
A.L.R.,page 583:
"1. It must be createdby the Conetitutionor by the
Legislature,or createdby a municipalityor other body
throughauthorityconferredby the Legislature.
"2. It must posaesra delegationof a portionof the
sovereignpower of government,to be exerciredfor the bene-
fit of the public.
“3. The powers conferredand the dutiesto be dir-
chargedmust be defined,directlyor lnpliedly,by the Leg;
islatureor throughLegislativeauthority.
"4. The dutiesmust be performedIndependently and
without controlof a superiorpower, other than the law,
unless they be those of an inferioror subordinateoffice,
createdor authorizedby the Legislature,and by it placed ,,
under the generalcontrolof a superiorofficeror body.
II
5. It must have some permanencyand continuity,and
not be only temporaryor occasional."
The place of ExecutiveDirectorsatisfiesall of these require-
ments. The positionla createdexpresslyby the Legislativeenactment;
the ExecutiveDirectorpossessesby delegationa portionof the sovereign
l
HonorableMarvin Leonard,Page 3 (0-5085)
power of government,to be exercisedfor the benefit of the
public, in that the legislaturehas vested in him the power
and duty to dischargeall administrative and executivefunc-
tions of the State Departmentof PublicWelfareend vests in
the positionthe authorityto exerciseany right,power, or
duty imposedor conferredby the act upon the State Depart-
ment of Public Welfare;the powers to be exercisedand the
dutiesto be discharged,are definedby the Legislatureand
by its authority;the dutiesto be performedare independent
and without controlof a superiorpower, other than the law,
exceptas the directormay be placedby the act under the
generalcontrolof the Board; the office itselfis of a per-
manent and continuingnature,though the tenure of the partlc-
ular incumbentmay be only duringthe pleasureof the Board.
See cases cited in the annotationin 53 A.L.R., followingthe
case of'Barneyv. Hawkins,cited above.
Additionalevidenceof the existenceof an office,ratherthan
of a mere employment,is found in the followingfacts:
1. The act itselfrefers to the ExecutiveDirectoras
an officer. This, while not conclusive,is indicativeof the
legislativepurpose.
The act providesthat the ExecutiveDirectorshall
be apE:intedwith the advice and consentof two-thirdsof
the membershipof the Senate.
3. The act prescribesthe qualifications
to be poa-
sessedby the ExecutiveDirectorin detail.
That the Directoris not requiredby the terms of the Act to
give bond is of no importance. Many officersof this State are not re-
quiredto give bond. Likewise,it is not necessaryto the existence
of an officethat the incumbentbe given a fixed and definitetenure;
an officemay exist,though the incumbenthold only duringthe pleasure
of the appointingpower.
The statute,it is true, does not specificallyrequirethat
the ExecutiveDirectortake the constitutional oath of office. Article
16, Section1, of the Constitution, however,imposesthe requirement,
independentof any statute,that all officerstake the oath therein
prescribed. This sectionwould be meaninglessif the prescribingof
an oath were indispensableto the creationof an office,for by merely
.
HonorableMarvin Leonard,Page 4 (0-5085)
failingto prescribethat an oath shouldbe taken, the Legislaturewould
be able to defeatthe constitutionalrequirement.
Yours very truly
APPROVEDMAR 4, 1943 ATTORNEYGENEPALOFTEXAS
1.4 GeraldC. Mann
ATTORNEYGRVEXALOFTEXAS By /s/ R. W. Fairchild
R. W. Fairchild
Assistant
RWF:nw:lm
APPROVED
OPINION
COMMlTPEE
BY /s/ BWB
CHAIRMAN