Untitled Texas Attorney General Opinion ( 1942 )

GERALD C. MANN
AuwrLN 11. Tp;gas
XXXlXdfX
Honorable Charles R. Martin Opinion No. O-4968
County Auditor
Harrison County Re: A member of a Board of Health
Marshall, Texas appointed in accordance with
Article 4435, Revised Civil Stat-
utes of Texas, who is paid a salary
by the county, holds a civil office
of emolument, and his acceptance
of the office of deputy constable
would vacate his office as a mem-
ber of such Health Board, and re-
Dear Sir: lated matters.
We have received yo.ur letter of recent date, the material
parts of which are set out below:
“Under Article 4435, Vernon’s Civil Statutes the
Commissioners Court of any county in which an unincor-
porated town or village may be situated, shall have power
to designate the lines of such town or village, and may ap-
point a board of health for it, consisting of three persons,
two or more of whom shall be regular practicing physicians.
In Harrison County such a board has been appointed consist-
ing of two physicians and one enforcement officer who pa-
trols the area daily.
“Would it be legal for a Constable, compensated on a
fee basis, to appoint as a deputy constable, the enforcement
officer for the Health Board, to assist the Constable in mak-
ing arrests, etc., but in no manner to interfere with his duties
as enforcement officer for the Health Board, and if it would
be legal for the deputy to accept such fees as he might earn
as a deputy constable in addition to his salary as enforcement
officer for the Health Board and who is paid a salary by the
county for such services as a member of the Health Board ?
Y. . . . w
As we understand your question it may be restated as set
Honorable Charles R. Martin, page 2 (O-4968)
out in the above caption.
Article 4435, Revised Civil Statutes, reads as follows:
“The commissioners court of any county in which an
unincorporated town or vill&ge may be situated, shall have
power to designate the lines of such town or village, and may
appoint a board of health for it, consisting of three persons,
two or more of whom shall be regular practicing physicians..
Said court when such appointments are made shall at once
notify the State Health Officer. Said board shall elect one of
.
their members as presiding officer; and such presiding offi-
cer, if the premises of any citizen residing within the pre-
scribed limits of said town or village acre in an unclean or un-
healthy condition, shall notify him of the fact, and that he must
proceed at once to clean the same. Acts 1889, p. 139; Acts 1st
C. S. 1901, p. 29.”
Section 41), Article 16. of the Texas Constitution provides in
part as follows:
“No person shall hold or exercise, at the same time,
more than one Civil Office of emolument, except that of Justice
of Peace, County Commissioner, Notary Public and Post-
master, Officer of the National Guard, the National Guard Re-
serve, and the Officers Reserve Corps of the United States and
enlisted men of the National Guard, the National Guard Reserve,
and the Organized Reserves of the United States, and retired
officers of the United States Army, Navy, and Marine Corps>
and retired warrant officers, and retired enli.sted men of the
United States Army, Navy, and Marine Corps, unless other-
wise specially provided, herein . . D*
In opinion No. O-830 this department held that a constable is
prohibited from accepting pay as a grand jury bailiff while retaining his
office as constable. Such opinion reads in part as follows:
“It is well established that a constable is a public officer,
Murray v. State, 67 S. W. (2) 274; Tex. Jur. Vol. 34, p. 601; and
Tex. Jur., Vol. 38, p. 432.
“Section 40, Article 16 of the Constitution, supra, prohi-
bits the holding at the same time more than one civil office of
emolument, except those offices named therein.’
Honornble CharIes R. Martin, page 3 (O-4968)
In our opinton No. O-1646 it was held to be immaterial that
the constables were compensated on a fee rather than a salary basis.
In our opinion No. O-1003 it was held that a constable may
not serve and receive pay as either a city marshal1 or city fireman and
at the same time receive the pay or emoluments of the office of constable.
You will note that Article 4435, Revised Civil Statutes, says
that the commissioners court may “appoint” a Board of Health. It does
not say that the Board shall be “employed” or “hired”. In the case of
Bighan v. State, 148 S.W. (2) 835, the Court of Criminal Appeals in dis-
cussing the question ,of what is a public officer said:
“‘While not a necessary adjunct, nevertheless the fact that a
person receives his position by appointment is at least persuasive
to some extent that such position is an office; if he receives such
merely by employment, the inference might lean toward the fact
that he was but an employee.”
In the case of Knox et al. v'. Johnson, 141 SW. (2) 698 (writ
of error refused), the court said:
”
. . . ‘It may be stated, as a general rule deducible from
the cases discussing the question, that a position is a public
office when it is created by law. with duties cast on the incum-
bent which involve an exercise of some portion of the sovereigp
power and in the performance of which the public is concerned,
and which also are continuing in their nature and not occasional
or intermittent; while a public employment, on the other hand,
is a position which lacks one or more of the foregoing elements.’ n
We also call your attention to the following statement from
our opinion No. o-1003:
“The acceptance of and qualification for the office of city
marshal1 would, ipso facto, amount to a vacation of the office
of constable. Torne v. Hochstetler. 221 S.W. 631.”
It is. therefore, our opinion that a member of a board of
health appointed in accordance with Article 4435, Revised Civil Stat-
utes of Texas, and reaeiving a salary therefor, holds an office of emolu-
ment. It is further our opinion that a deputy constable holds an office
of emolument. Our Constitution prohibits the holding of both such offices
by the same person at the same time. If the member of the board of
health accepts the office of deputy constable, he would automatically vacate
Honorable Charles R. Martin, page 4 (O-4968)
his office as a member of the health board and would no longer be entitled
to his salary as a member of such board.
We note in your letter the phrase “such fees as he might earn
as a deputy constable”. Deputy constables are not allowed to retain fees.
Their appointment and amount of compensation must be authorized by
the commissioners’ court. See Article 3902, Revised Civil Statutes of Texas.
Trusting that the foregoing fully answers your inquiry, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY /s/ Donald Gay
Donald Gay
Assistant
DCi:mp:da
APPROVED DEC 7. 1942
/s/ Gerald C. Mann
ATTORNEYGENERALOFTEXAS
APPROVED OPINION
COMMITTEE BY BWB, CHAIRMAN