GERALD C. MANN 

XXXlXdfX 

AuwrLN 11. Tp;gas 

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 Statutes 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 member of such Health Board, and reDear 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 unincorporated town or village 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. 

In Harrison County such a board has been appointed consisting of two physicians and one enforcement officer who patrols 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 making 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 officer, if the premises of any citizen residing within the prescribed limits of said town or village acre in an unclean or unhealthy 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 Postmaster, Officer of the National Guard, the National Guard Reserve, 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 otherwise 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, prohibits 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 discussing 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 incumbent 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 Statutes of Texas, and reaeiving a salary therefor, holds an office of emolument. 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 

DCi:mp:da 

BY /s/ Donald Gay 

Donald Gay 

Assistant 

APPROVED DEC 7. 1942 

/s/ Gerald C. Mann 

ATTORNEYGENERALOFTEXAS 

APPROVED OPINION 

COMMITTEE BY BWB, CHAIRMAN