Untitled Texas Attorney General Opinion

The Attorney General of Texas
April 21, 1986
JIM MATTOX
Attorney General
Supreme Court Building Honorebla Jasusa Sanchez-Vera Opinion No.JM-480
P. 0. BOX 12548 Jim Walls County Attorney
Aus,,n, TX. 78711. 2548 P. 0. Drawer 2080 Ra: Whether a vetaren's county
512/475-2501 Alice, Texas 78333 service officer may simultene-
Telex 910/874-1367
Telecopier 512i4750266
ously sarva as e city councilmen
Deer Ms. Sanchez-Vera:
714 Jackson. Suite 700
Dallas, TX. 75202-4506
You ask whethaer e veteran's county service officer may et the
214/742-a944
same tima sarva ae a city councilman. You point out that article XVI,
saction 40, of 1:ba Taxes Constitution prohibits one person from
4824 Alberta Ave., Suite 160 holding more than one civil office of emolument et the same time, end
El Paso. TX. 79905-2793 ask whether e vatcram county service officer and the city councilmen
915/533.3484 of a particular city both hold civil offices of amlment.
1 Texas, Suite 700
Prior Attornsy General Opinions have held that the veterans
,P ,ston, TX. 77002-3111 county sarvica officer occupias e civil office of emolument. Attorney
I ,3/223-5886 General Opinions '7-144 (1947); O-5675 (1943); Latter Advisory No. 61
(1973). Thase opinions state that the veterans county service officer
is a civil officm of molumaat but do not discuss his duties or
806 Broadway. Suite 312
Lubbock, TX. 79401-3479
provide any other reesons for their conclusion.
806,747-5238
Subsequent ta the issuenca of Latter Advisory No. 61 (1973), this
office daterminad that there was no distinction between "civil office"
4309 N. Tenth, Suite B
and "public office." Attorney General Opinion MU-415 (1981) concludad
McAllen. TX. 78501-1885
512/682-4547
that the defint:ion of "public office" articulated in Aldina
Indapandant Schoo:,District v. Standlay, 280 S.W.2d 578 (Tax..1955)
also applies to the term "civil officer" es it appears in article XVI,
200 Main Plaza, Suite 400 section 40 of the Taxes Constitution. Thus,
San Antonio. TX. 78205-2797
512/2254191
the datarmining factor which distinguishes e
public xfficer from an amployee is whether any
An Equal OppOrtUnitYI sovereign function of the govarnmant is conferred
Affirmative Actlon Employer upon the individual to be exercised by him for the
benefit of the public largely independent of the
control of others.
AldLna Independent-School Dietr&mt``y.Stendlay: supra et 583 (quoting
Dunbar v. Brezoria County, 224 S.W.2d 738. 740 (Tex. Civ. App. -
Galveston 1949, WI!Tt ref'd) (amphesis deleted). Sac Green v. Stawert,
516 S.W.2d 133 (Tm. 1974). . This is the definition "a must emlv to
determine whether the vatarens county service officer is a'civil
officer within article XVI, section 40, of the Taxes Constitution.
p. 2197
MS. Jesuse Sanchez-Vera - Pega 2 (JM-480)
Article 5787, V.T.C.S., creates the office of veterens county
service officer. The commis:xtoners court may maintain end operate
such an office when It determdnrs
that such en office is a public necessity in order
that those residents of a county who have served
in the ermad forcc!s may promptly properly end
rightfully obtain t'lebenefits to which they ere
entitled. . . .
V.T.C.S. ert. 5787. 51(e). The commissloners court appoints the
vatarens county service offj.cer end any assistant vetarens county
service officers es ere necessary end pays their salary end expenses
from the general funds of tha county. The veterans county service
officers end the assistants f!ervefor a two year term unless sooner
removed for ceuse by the cclurmissionerscourt. The duties of the
veterans county service offictz end assistants
shell be to aid all residents of the county end/or
counties providing fclrsuch officers who served in
the Military, Navel, or other Armed Forces or
Nurses Corps of the United States during any wer
or peacetime lnlis~xaant, end/or veterans end/or
orphans end/or depandants in preparing. submitting
and presenting any claim against the United Stetas ?
or any state, for compensation. hospitalization,
insurance or other itam or benefits to which they
mey ba entitled under the existing laws of the
United States, or of any steta, or such laws es
may haraefter be enacted, pertinent thereto. It
shell also be thel.1:duty to defeat all unjust
claims that may come to their attention.
V.T.C.S. art. 5787, 51(c). No fees may be charged of applicants.
Veterans county service officc!rsend assistant officers are
given official entry into records of the
alaamosynary end penal institutions of the State
of Taxes . . . for the purpose of determining the
status of any parson confined therein in regard to
any benefit to which such person mey be entitled.
Id. $1(d). Contiguous counr:j:esmey agree to "jointly employ and
Gpenseta a Veterans County Service Officer. . . .II -Id. §l(a).
Your request letter dltscribas the functions of the county
veterans service officer as fo:llows:
[Ha] acts es e 1:Lesonofficer between veterans,
their widows and/or dependents end student
veterans end the F'ilitery, Social Security, the
Veterans Association or Educational Institutions.
p. 2198
Ms. Jesuse Sanchez-Vera - Page 3 (m-480)
He helps prepare end handle the paperwork between
the individual :md the agency. BeI mekas no
decisions or da:terminetions of the veteran's
eligibility. All decisions end eligibility
detarmluetions ece meda by the Military, Social
Security, end Veteran’s Association, or the
Educational Instj,tution.
The vatarens county s,arviceofficer assists others to apply to
various governmantal agencies for vaterens benefits, end ha has no
power to grant or deny eny application for benefits. Although
veterans county service officers have a duty "to defeat all unjust
claims that mey come to their attention," this provision dots not
authorize tham to deny cla:ims;that euthority rests with the state or
federal agency which edmiulstars the particular benefit program. The
veterans county service xEficar ten assist in defeating "unjust
claims" by refusing to hair prepare such claims.
In our opinion, the vatarens county service officer is en
"officer" In neme only. Be does not exercise any sovereign function
of government. A veteran hss legal authority to submit his claim to
the appropriate state or fe:daralagency without involving the vetarens
county service officer. The latter individual merely provides those
ministerial services nacassery to assist the veteran in applying for
benefits.
Although article 578" creates "en office" end identifies the
occupant es the "Veterans County Service Officer" it dots not grant
him the powers of a public officer. The veterans county service
officer is not s civil of::llcar of amolumant, but a county employee.
He is not barred by article XVI, section 40 from serving es e
compensated city councilmarlwhile he also holds employment es a county
vatarens sarvica officer. Attorney General Opinions O-5675 (1943) and
V-144 (1947), end Letter Advisory No. 61 (1973) era overruled to the
extent inconsistent with this opinion.
SUMMARY
The veterans county service officer whose
position is estel~lishadby article 5787, V.T.C.S.,
dots not hold a public office. Ha is e county
employee end Is not barred by article XVI, section
40 of the Texas Constitution from serving es a
compensated city councilman.
J ti
Very truly you
AN
> I M MATTOX
Attorney General of Taxes
p. 2199
Ms. Jesuse Sanchez-Vera - Pa:%=4 (JM-480) .
JACK HIGHTOWRR
First Assistnnt Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairmen, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2200