Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Honorable 17.C. McDonald County Attorney Coke County Robert Leei Texas. Dear I& McDonald: ion whether the Federal Salary ~Stab authority conferred by sioners' Court of a 0 j salary of the Coun zea by law. approval of the the Se- arias we can aeterdne, hereof provides:' sation where the relationshipbetween him and the.person for whom he performs the servioes is the legal relation- ship of employee and agdoyer.. An employer is any person for whom an'individualperforms any servioea, of whatever nature, as the employee of such person. The term 'employer' ~HonorableW. C. l&Donald, page 2 is not limited to private persons engaged in trade or business, but includesorganizationswhich, under Section .lOlof the Code, are exempt from income taxation,and also Government aepart- ments and agencies. The existence of the legal relationship of employer and employee is to be ascertainedin the light of the general purposes of the Act and the General Regulations, "Generally,the legal relationshipof employer and employeeexists when the person for whom services are performedhas the right to oontrol and direct the individual who performs the servioes,not only as to the result to be acoomplisheaby the work done, but also as to the details ana means by which that result is accomplished. An employee is generally subject to the will and oontrol of the employer not only as to what shall be done but how it.shall be done. In this oonuectionit is unnecessarythat the employer actually direct or oontrol the preoise manner in whioh the services are performed;it is sufficrient that he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. "Other faot,ors, oharacteristicof an employer, but : not necessarilypresent in every ease, are the furnishing of tools and the furnishing'ofa .plaoeto work to the inaivi- dual who performs the servioes. In general, if.an individual is sub&et to the oontrol or dire&ion or another merely as to the result~to be accomplishedbe thework~ana not as to the means and nethods for accomplishingthe result, he is an independentcontractor. An inaiviaual~performingservices as an independenteontraatoris not an~employeeas to such services. Physicians,lawyers, arohiteofs,contractorsand others who follow an independenttrade, business or profession in mhich they offer their servioes to the public are~generallyindependent contrao- tors ana not employees. Whether the relationshipofemployer- employee exists will be determinedupon an examinationof the particularfaots of eaoh aase. *If the relationshipof employer and employee exists the designationor descriptionof the relationshipby the par- zti;iiything other than that 'ofemployer and employee is If such relationshipexists, it is of no ,consequenoe that the.&ployee is designated as a partner, co-adventurer, agent or independentoontraotor. The measurement;method or de- signationof compensationis immaterialif the r@ationehip of employer ana employee thus in faet exists. '~ Honorable W. C. McDonald, Page 3 "An offlo& of a corporationIS au employee of the corporationbut a director as such is not. A aireo- tor may be an employee,ofthe corporation,however, if he performs servioes for the corporationother than those requiredby attendance at and participationin meetings of the board of directors.n Sec. 1002.32 provides: "The provisions of these Regulationsare applicable in every respect to any salary paid by,the United States, any State, Territory,or possessionor political subdivisionthereof, the ~Districtof Columbia, or any agency or instrumentalityof any one or more of the foregoing, except where the amount of such salary is fixed by statute. The term 'statute'for purposes of this Section does not include a munieipal.ordinanceor resolution enacted by a governmentalunit inferior to a State, Territory,or possession. Salaries covered by the Federal ClassifioationAct of 1923, as amended, are exoludea from the operationof these Regulations.Like- wise, salaries, for example, or public school teachers which are paid~unaer salary schedulesfixed by a state legislatureand provia- ing for maqdatory incrementsare excluded from the operation of these Regulations. See Section 1002.17.n The County Judge of a Texas county is an officer, not an exdployee.Consequently,the Regulationsreferred to do not affect the authorityof the Commissioners* Court to increase his ex-officio salary. In view of the foregoing, it becomes &eoessary to aeter- mine whether the salary of the County Judge is "fixed by statute", within the meaning of Sea. 1002.32, where the statute fixes the maximum oompendationto be allowed the County Judgesby the Commis- sioners' Court; or whether the provisions of See. 1002.l4 apply. It likewise becomes unnecessaryto considerthe question raised by you as to the oonstitutfonalityof such regulations insofar as they purport to apply to the State and its political subdivisions and instrumentalities~.. Very truly yours ATTORNEYGENXXAL OF TEXAS BY (8) R. W. Fairchild Assistant RWF-MB AZ'PROVEDDEC 21, 1942 APPROVED OPINION COMMITTEE GEWiLD C. l&ANN By GWB ATTORN3EGENERBLOF TEXAS Chairman