GERALD C. MANN

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Honorable Charles R. Martin Opinion No. O-4968 County Auditor Harrison County Re: A member ofa Board ofHealth Marshall, Texas appointed in accordance with Article 4435, Revised Civil Statutes ofTexas, who is paid a salary bythe county, holds a civil office ofemolument, and his acceptance ofthe office ofdeputy constable would vacate his office as a member ofsuch Health Board, and reDear Sir: lated matters.

We have received yo.ur letter **of**recent date, the material parts ofwhich are set out below:

“Under Article 4435, Vernon’s Civil Statutes the Commissioners Court ofany county inwhich 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 ofhealth for it, consisting ofthree persons, two or more ofwhom shall be regular practicing physicians. In Harrison County such a board has been appointed consisting oftwo physicians and one enforcement officer who patrols the area daily. “Would it be legal for a Constable, compensated ona fee basis, to appoint as a deputy constable, the enforcement officer for the Health Board, to assist the Constable in making arrests, etc., but inno manner to interfere with his duties as enforcement officer for the Health Board, and if itwould be legal for the deputy toaccept such fees as he might earn as a deputy constable in addition tohis salary as enforcement officer for the Health Board and who is paid a salary by the county for such services as a member oftheHealth Board ? Y w

. . . . As we understand your question it may be restated as setHonorable Charles R. Martin, page 2 (O-4968)

out inthe above caption.

Article 4435, Revised Civil Statutes, reads as follows: “The commissioners court of any county inwhich an unincorporated town or vill&ge may be situated, shall have power to designate the lines of such town or village, and may appoint aboard ofhealth for it, consisting ofthree persons, two or more ofwhom 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, ifthe premises ofany citizen residing within the prescribed limits of said town or village acrein an unclean or unhealthy condition, shall notify him ofthe 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.ofthe Texas Constitution provides in part as follows:

“No person shall hold or exercise, atthe same time, more than one Civil Office of emolument, except that of Justice ofPeace, County Commissioner, Notary Public and Postmaster, Officer ofthe National Guard, the National Guard Reserve, and the Officers Reserve Corps ofthe United States and enlisted men ofthe National Guard, the National Guard Reserve, and the Organized Reserves ofthe United States, and retired officers ofthe United States Army, Navy, and Marine Corps> and retired warrant officers, and retired enli.sted men ofthe 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:

“Itis well established that a constable is a public officer, **Murray** v. State, 67S. W. (2) 274; Tex. Jur. Vol. 34, p. 601; and Tex. Jur., Vol. 38, p. 432. “Section 40, Article 16ofthe 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 itwas held tobe immaterial that the constables were compensated ona fee rather than a salary basis.

In our opinion No. O-1003 itwas held that a constable may not serve and receive pay as either a city marshal1 or city fireman and atthe same time receive the pay or emoluments **of**the office ofconstable.

You will note that Article 4435, Revised Civil Statutes, says that the commissioners court may “appoint” a Board ofHealth. Itdoes not say that the Board shall be “employed” or “hired”. Inthe case of Bighan **v. State,**  **148**S.W. **(2) 835,** the **Court** of Criminal Appeals in discussing the question ,ofwhat is apublic officer said:

“‘While not anecessary 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; ifhe receives such merely by employment, the inference might lean toward the fact that he was but an employee.” Inthe case of Knox et al. v'. Johnson, 141SW. (2) 698 (writ oferror refused), the court said:

”

. . . ‘Itmay 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 onthe incumbent which involve an exercise ofsome portion ofthe sovereigp power and inthe performance ofwhich the public is concerned, and which also are continuing intheir nature and not occasional or intermittent; while apublic employment, onthe other hand, is aposition which lacks one or more ofthe foregoing elements.’ n We also call your attention tothe following statement from our opinion No. o-1003:

“The acceptance ofand qualification for the office of city marshal1 would, ipso facto, amount to a vacation ofthe office of constable. Torne v. Hochstetler. 221S. W. 631.” It is. therefore, our opinion that a member ofaboard of health appointed in accordance with Article 4435, Revised Civil Statutes of Texas, and reaeiving a salary therefor, holds an office of emolument. Itis further our opinion that a deputy constable holds an office ofemolument. Our Constitution prohibits the holding ofboth such offices by the same person at the same time. Ifthe member ofthe board of health accepts the office ofdeputy constable, he would automatically vacateHonorable Charles R. Martin, page 4 (O-4968)

his office as a member ofthe health board and would no longer be entitled tohis salary as a member ofsuch 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 ofcompensation **must** be authorized by the commissioners’ **court.** See Article 3902, Revised Civil Statutes ofTexas.

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