A.rrOH?sacY GENERAI. Ron. DanW. 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.1Statutes. 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 whoholds 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 whohas not paid his poll tax, shall act as judge, clerk or supervisor of any election...." Wequote from 

### 34Texas 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 employmentHon. DanW. 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 whoexercises 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 dutle8. Amongthe 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, ~sndnot 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.” Wequote from 

### 34Texas 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.” Wequote 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. DanW. 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 ~3sthat 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 1y 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 ,,andpermanent ,.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 Dakota3 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 ~:arepublic -,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 drainageHon. DanW. 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,” $nsexMons of statutes oust) (Parerithetidal~ ” :
With reference %o your flrat quest&on ~youare. i?ti&eti4%$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 $upemrisora of any election In this State,. ‘,Y& :,a’eePurther~ respectfully advised .that it is the. opinion ~ofth$iae#artment that 8ChOOlteacher8 are nqt public ‘offlcalrs &ndiir&~~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 oarsuper$lsora:~$i~ not otherwise disqualified, ,Youare, 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. Wefael 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. Wehave 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 samenot appllaable~here beaause of a diPferent.queetian Involved. Wehave read the cases cited by you in your brief r&lativ,e~ to the second questlon. lihe case of Savage v. Umphrles, 

### CiviApp. 118 SW968;: 1 cited by you In your brief, decided .April 20, 19G9i.hoI& amongother thlnge, that”wJaere the. law ,,mqulred the~,~a;ppointment of two judges In a precinct If one wa8dlsquslifled 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. DanW. Jackson, Page 

### 5, 0-2056

cited by you In your brief, holds amongother 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. Wequote 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~theellglb1llty.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 byereason 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 officersRon. 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, maywell be~held to have merely a directory effect." (Under scoring ours) The case of Miller at ai v. Tucker, et al, 119 SW2d 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. Wewish 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

OFTEXAS S/ Wm.J. Fanning BY _.

Wm.J. Fanning Assistant
WJF : AW/c ge APPROVED

APRIL2, 1940 f$ .Gerald C. Mann ATl'ORNEY

GENERAL

OFTEXAS Approved Opinion Committee By BWB,Chairman