Untitled Texas Attorney General Opinion

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HEATTORNEY GENERAL
OFTEXAS
October 2. 1969
Honorable Enrique H. Pena Opinion No.M-484
County Attorney
El Paso County Re: Whether an employee of
El Paso, Texas a~ county or a hospital
district must be a resi-
dent of the State, County
or Hospital District.
Dear Mr.Pena:
You have requested an opinion from this office upon the
question of whether an employee of a county or hospital district
must be a resident of the State, County or Hospital District.
This office has heretofore concluded in Attorney General's
Opinion Number W-1412 (1962) that a tax assessor and collector
of an independent school district would not have to reside
within the territorial confines of the school district of his
employment; and in Attorney General's Opinion Number M-308
(19691, the opinion was expressed that a deputy constable did
not have to reside within the precinct he served as such deputy.
Your letter, however, poses one additional matter that
was not covered in the two former opinions, that being whether
a person had to be a resident of the State as well as of the
County or Hospital District in order to be eligible for employ-
ment.
The only constitutional or statutory requirement as to
residence of public officials or employees pertains to civil
officers and is found in Section 14, Article XVI of the Con-
stitution of Texas, which provides:
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.
Honorable Enrique H. Pena, page 2 (M-494)
"All civil officers shall reside within the
State: and all district or county officers within
their districts or counties, and shall keep their
offices at such places as may be required by law: and
failure to comply with this condition shall vacate
the office so held."
Public officers or civil officers of this State occupy a
different status than an employee, and the distinguishing
feature was stated by the Supreme Court of Texas in Aldine Inde-
pendent School District v. Standlev, 154 Tex. 547, 200 S.W.2d
578 (1955), wherein the following was quoted from the case of
Dunbar v. Brazoria County, 224 S.W.2d 738 (Civ.App. 1949, error
ref.):
"From the above authorities, it is apparent, we
think, that the determining factor which distinguishes
a public officer from an employee is whether any
sovereiqn function of qovernment is conferred upon
the individual to be exercised bv him for the benefit
of the public larselv independent of the control of
others.* (Emphasis added.)
The above holding by our Supreme Court is recognized
by the statement and authorities cited in 42 American Juris-
prudence 890, Public Officers, Section 12, from which we
quote:
"A position is a public office when it is created
by law, with duties cast on the incumbent which in-
volve some portion of the sovereign power and in the
performance of which the public is concerned, and
which also are continuing in their nature and is not
occasional or intermittent: while a public employment,
on the other hand, is a position in the public ser-
vice which lacks sufficient of the foregoing elements
or characteristics to make it an office."
It would appear that employees who do not meet the
criteria set forth in the above authorities for holders
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Honorable Enrique H. Pena, page 3 (M-484)
of a public office would not have to be residents of the
State, County or Hospital District where employed.
SUMMARY
An employee of a county or hospital
district, as distinguished from an officer
thereof who exercises sovereign powers for
the benefit of the public largely inde-
pendent of the control of others, is not
required to be a resident of the State,
County or Hospital District where em-
ployed.
General of Texas
Prepared by Gordon C. Cass
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Roland Allen
James M. Mabry
Brandon Bickett
Arthur Sandlin
MFADE F. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant
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