A.rrOH?sacY GENERAI. 

Ron. Dan W. Jackson 

Criminal District Attorney 

Houston, Texas 

Dear Sir: gttentlon: Palmer Hutcheson, Jr. 

Opinion NO. 0-2056 

Re: Elections - Judges, Clerks and 

Supervisors - Article 2940, Revised 

Clv~i.1 Statutes. 

Your request for opinion upon the following questions: 

"1. Are school teachers, school trustees, 

officers and employees of the various school 

systems and~dlstricts; employees and officers of 

the ,various drainage districts and other employees 

paid by tax money but not specially~llsted in 

Rrticle'2940, disqualified as judges, clerks or, 

supervisors of elections? 

l12." If so, is such disqualification mandatory 

or directory?" ~ 

has been received and carefully considered by this department. 

Article 2940, Revised Civil Statutes of Texas, as amended, 

reads, In part, as follows: 

"No one who holds an office of profit or trust under 

the United States or this State, or In any city or town 

in this State, or within thirty (30) days after.resignlng 

or being dismissed from any such office, except Notary 

Public, or who is a candidate for office, or who has not 

paid his poll tax, shall act as judge, clerk or supervisor 

of any election...." 

We quote from 34 Texas Jurisprudence, pages 332-3-4,~, 

Public officers - Section 2 - Definitions and characteristics, 

as follows: 

"Rany judicial definitions of 'public offlce( are to 

be found in the reported cases, but they are substantially 

of the same import. It is said to be a right to exercise 

a public function or employment and take the fees and 

emoluments belonging to it; 'a public stationor employment 
Hon. Dan W. Jackson, Page 2, 0-2056 

conferred by the appointment of government;land ‘the 

right, authority, and duty created and conferred by law, 

by which, for a given period, either fixed by law, or 

enduring at the pleasure of the creating power, an 

Individual is Invested with some portlon,of the sovereign 

functions of the government, to be exercised by him for 

the benefit of the public.’ The individual so Invested Is 

a public officer. He la a person who exercises some 

functions of the government - one who Is commissioned 

or authorized to perform any public duty. 

“The Revised Statutes provide that when an 

officer is referred to in any civil or criminal law 

of this State, an officer of this.State Is meant, 

unless otherwise expressly provided; and various articles 

of the Penal Code define ‘officer’ as the term is used 

in denouncing particular offenses. 

“‘Office’ embraces the Ideas of tenure, duration, emolument 

and dut le 8. Among the criteria for determining whether 

an employment Is a public office’are the following; the 

delegation of a portion of the sovereign functions of the 

government; the requirement of an official oath; that the 

power8 entrusted are c0nferre.d by law and not by 

contract; and the fixing of the duration or term of 

office. It ia the duty pertaining to the office 

and the nature of that duty, ~snd not the extent of 

.authority which make the Incumbent an officer; and one 

Is none the lessan officer because his authM%ty Is 

confined to narrow limits. Salary or comms&%ion is not 

essential to constitute an emplbyment an office; it is 

a mere incident and form8 no part of the office. 

“There IS, as we shall see presently, a distinction 

between the ,offlce and the term of office, and between 

an office and a public contract or employment.” 

We quote from 34 Texas Jurisprudence, page 324, 

Public officers - contract dlstlngulshed from office, as follows: 

“A public office is something different from 

a public contract. Offickrs hold, their positions 

by election or appointment and not by contract.” 

We quote from 34 Texas Jurisprudence, page8 325-6, 

Publlo officers - employment dlsti~ngulshed,‘as follows: 

“There is a material difference also between $% 

public office and a public employment. .The relation 

between an office bolder and the government under which 
. . 

Hon. Dan W. Jackson, Page 3, 0-2956 

he function8 Is not that of an employer and employee, 

and ~thelr respectlve.rights are not to be determined 

by application of the rules of contracts of employment. 

As said by Chief Justice br8hal1, ,‘Although an office 

is an employment,, it does not follow that every employment,,is an office. 

“The most Important distinction ~3s that the 

creation and conferring of an office Involves a delegation 

to .the, individual of some. of the sovereign functions of 

t,hegov,ernment, to be exercised by ,him for the benefit of 

the public. . Other distinctions are:~ that en office must 

be. creat~ed by law, while an employment Mayo be:; and 

frequent 1 y Is , created ,by c.ontract ;, and ,offlcers are 

usually required to~.take an oath’ and serve for a definite 

term; and,. that the duties, of an office are. generally 

continuing ,,and permanent ,.rather than temporary and 

transitory. . ,. . “~ 

” :. 

The case; of Moots. v.. Belyea, 60 N.D. 741; 2 6 N.W. 358, 75 

A.L.R. 1347, .(Supreme, Court of North Dakota 3 holds that a 

schoo$ _ teacher employed ‘by a common. school district Is an 

employee and not an,.offlcer and that the.relatlonshlp between 

her and the sqhool board .ls that of contractonly. 

,- 

We quote:.from 75 A.L.R,, &&8 1352-3, 88 follows: 

!%e courts are almost unanimous In holding that 

thqie;position of a teacher is that of~~,an employee, resting 

on the contract. of employment, and not that!~of public. 

officer.“’ 

The ‘co&%s’iof Texas have repeatedly held that school 

trustees ~:are public -,offlcers of this State. See the ,followlng 

case8: 

“Rowan v. ‘King, 94 Tex. 659, 55 SW 123; 

Kimbrough v. Darnett, 93 Tex. 301, 55 SW 120; 

Lee v. Leonard IInd. School District, 24 SW (2) 

443; 

Thomas v. Abernathy County line Ind. School Dist., 

278 SW 3x.290 SW 152; 

Buchanan v. Graham, 81 SW 12j7; 

Hend,ricks~ v. State, 49 SW 705.. .' 

We :quote ,,from 15 Texas Jurisprudence, page 732, Drainage 

Districts.* Section :l?,; Drainage Commlssloners - Powers in 

General,, as follows :; 

;.., ” .,~_. 

“The statutes provide ,,for the election of drainage 
Hon. Dan W. Jackson, Page 4, 0-2056 

commissioners, (Wt. 8119, R.C.S.) or In lieu 

thereof their appointment, by the comml$stone~psl ‘court.. 

(Art, 8118, R.C.S.) Other provisions -regulate the 

EI? 

7 

e: commissioners’ term8 of office;.(Art, 81.19, 

their salaries, 

oi if&e. 

(Art. 8120, R.C.S.) their oath 

(Art. 8121,‘R.C.S.) official’ bond8,,.Y(AF$;:~ :‘~ 

8122, R,C,S.) and their organization,” 

$nsexMons of statutes oust) 

(Parerithetidal~ ” : 

With reference %o your flrat quest&on ~you are. i?ti&eti4%$ly 

advised that It is the opinion: of this ‘departaient~ $hat” 8chool 

trustee8 and drainage comm$ssloners are public @ffice?s, off, 

this State and are dlsquallfled from aatlng as ‘jw,g&s,:,~ile$ks 

or $upemrisora of any election In this State,. ‘, Y& :,a’ee Purther~ 

respectfully advised .that it is the. opinion ~of th$iae#artment 

that 8ChOOl teacher8 are nqt public ‘offlcalrs &nd iir&~~t,:,~~ ‘. ,“~ 

disquallf$ed thereby from acting ‘a8 judges, -‘oletiks~~,~or _ :: 

supervisors of any election in this 3tate land t@+niay 

:, ‘,I’ 

legally serve as eleatlon judges,:, clerks oar super$lsora:~$i~ 

not otherwise disqualified, ,You are, further Pesp@a$ful,li’ :.:, ~~ 

advised that It ,ls the op+ion of’thls. depsrtment,‘.that,.~‘, ,. 

employee8 of the various school, systema and d*ainige~~d.lsti$ote 

who are not holders of an’office~ of prbflt. or .$$uat~;,uitdeP~-.th6 ,~’ 

United States or this, State, nor in .,‘any ‘<$:,:o$+ t6wn’:i$thi$ ‘. 

State, and who are not otherwise ~.disq~l,ifled ,~by~.lei+(~~:~:&Q.~ ~:~: ~1 ’ 

:~’ 

legally act as judges, clerk8 or’ su$~fllsoFb ,&p ~-ti.letit$+s:~$~ 

this State. We fael that you oan,readIZy, deter*mine~.whether,~~~, ” 

or not an employee is a~public officer bjr. applying the wle.g 

laid down by the quoted provlelons .of ‘Texas Jurlsptia~ncai ~~ 

8upra, to the facts In each situation presented to’~you. 

We have carefully read then ~opinian’ of this department q ,,“’ 

dated May 6, 1932, written -by Ron.. Bruce ~W, BrJranc,, :F&~st ,.. ,, 

Assistant Attorney General,’ referred, to by, you, ~,a!&& fiti 

that same not appllaable~here beaause of a diPferent.queetian 

Involved. 

We have read the cases cited by you in your brief r&lativ,e~ 

to the second questlon. 

lihe case of Savage v. Umphrles, Civi App. 118 SW 968;: 1 

cited by you In your brief, decided .April 20, 19G9i. hoI& 

among other thlnge, that”wJaere the. law ,,mqulred the~,~a;ppointment 

of two judges In a precinct If one wa8 dlsquslifled to eat;, ~ 

and there 18 nothing to show that .the other d1d’tiot ~ac$;‘~‘@nd 

nothing tb show that the election waa not falnly held~in that’ 

precinct the election 1~ that precinct will not be h6ld to,be,, 

void because ~~oni :;$.@g& had~ no Fight: to. act. 

The case of Gayle.:!v. Alexander (Civ,App.) 75 SW.2d:7061”~ 
Hon. Dan W. Jackson, Page 5, 0-2056 

cited by you In your brief, holds among other things, that 

although the election officers were disquallfled that fact did 

not render t-he election void, since statute is directory asp, 

regards vallddty of electlonj ln.absence~ of attempted exercise 

of influence on electors, or unfairness~ orfraud, where 

qualifications of majority of election officers were not 

challenged. 

We quote from the opinion of the court In the case of 

,Gayle v.. Alexander,-supra, as follows: 

"Appellant Insists that the.provlslons of Article 

2940 are mandatory;:that each of the aforesaid election 

officers aforesaid was disqualified and prohibited thereby 

from acting as such; and that the election in each such 

votlng~precinctwas, by reason of ~their partic.lpatlon in 

holding thesame., absolutely void.' A,Mandatoryiprovls5on 

In a: statute +s...one, the omLsslon tom follow, which renders the 

proc,eed$,ng.to, which It. relates Illegal and void., whlle,.a 

dlrectoSy:~:~Foaislon,is.:.one,, the,,observance of which is not 

necessaryto~the valldlty'~of ~the.proceedlng. &statute may ':' 

& mandatory in some respects.and~.dlreat._~n~ 

so far as the selection of election officers is concerned,,. 

saidarticle .mlght well be deemed mandatoryand compliance 

therewith required when ~the ellglb1llty.of~.sn officer so,,, 

selected 'is denled,'or his right to serve as.such: assailed 

by'lariy proper proceeding prlor,to his actual~servlce,... & 

such: situation Is presented in this case, But should the 

provisionsof said article In that ,phase of its application 

be held mandatory, it does not necessarily follow that when 

a person named in said article has been selected as an 

election officer for a,particular voting precinct; and his 

selection has not been agsalled but has been acaulesced in 

by the qualified electors of such precinct by participating 

in the election held therein, and the votes cast in such 

precinct have been fairly and correctly counted and ., 

tabulated'and return thereof duly made, that such election 

as to said.preclnct~ should, s~olely bye reason of the 

particlpatlon'of such election officer in holdfng the 

same, be declared void, the returns thereof excluded from 

the canvass~of the votescast In said election lh.the 

entire county, and the,voters of .such precinct thereby In 

effect disfranchised. ~,(Underscorlng ours) 

."....We thdnk under the findings of.the.court \ 

herelnbefore ~recited and the above authorities, that the, 

election In the several voting precincts under consideration 

was not 'rendered void by the participation of such 

disauallfied election officers in the holdinn thereof. So 

far-as ,the provisions ,of said article effect-the valid%= 

of elections In the holding of which disqualified officers 
Ron. Dan W. Jackson, Page 6 0-2056 

or clerks participated, the same, In the absence of some 

Imputation of attempted exercise of lnfluence'upon the 

electors, or unfairness or fraud, may well be~held to have 

merely a directory effect." (Under scoring ours) 

The case of Miller at ai v. Tucker, et al, 119 SW 2d 92, 

decided June 23, 1938, by the Beaumont Court of Civil App,eals, 

holds that a local option election was not rendered Invalid 

because the mayor of a town In a precinct acted as precldlng 

officer contrary to a statute prohibiting public office holders 

from acting as election officers , where the election was fairly, 

and honestly held and no objection was made to the mayor's 

serving, since the statute was merely directory. This opinion 

cited and followed the case of Gayle v. Alexander, supra. 

In answer to your second question, you are respectfully 

advised that It Is the opinion of this department that Article 

29&O, Revised Civil Statutes , as amended, is directory lnso~ far 

as said article affects the validity of electlons in the holding 

of which disqualified officers or clerks participated, in the 

absence of some Imputation of attempted exercise of Influence 

upon the electors, or unfairness or fraud. 

We wish to thank you for your able brief in this matter 

which has aided us greatly in passing upon your questlon.~' 

Very truly yours 

ATTORNEY GERERAL OF TEXAS 

S/ Wm. J. Fanning 

BY _. 

Wm. J. Fanning 

Assistant 

WJF : AW/c ge 

APPROVED APRIL 2, 1940 

f$ .Gerald C. Mann 

ATl'ORNEY GENERAL OF TEXAS 

Approved Opinion Committee 

By BWB, Chairman