OFFICE OF THE AlTORNEY GENERAL OF TEXAS 

/ AUSTIN 

a-c.mma4 J 

l r o m*n a I*- 

January 5, 1939 

Mr. E. N. Bender 

County Attorney, Stephens County 

Breckenridge, Texas 

Dear Sir: 

referred to the writer 

hire or lease." 

requires that all Wchauffears* 

of this Act. 

Seotion 3 sets out those persons who are exempt from 

payment of chauffeur's licenses. 
09 

Mr. E. N. Bender, January 5, 1939, page 2 

County commissioners are not exempted by any of the provisions of Section 3. Therefoxe, if a county commissioner while 

drivine an automobile belonsine: to the countv and on countv business 

is an em lo ee a ent-or inde endent contractor as those 

terms ~'i%%$%n~hen~ coun y commissioner would 

be a "chauffeur." 

At the outset, we must recognize the fact that a county 

commissioner is a public officer. We think the office of county 

commissioner comes within the definition stated by the Supreme 

.Court of Texas in the case of Kimbi?ough v. Barnett, 93 Tex. 310, 

55 S. W. 122, and quoted by the Commission of Appeals of Texas 

in the case of Commissioners* Court of Limestone County V. 

Garrett, 236 S. W. 970, as follows: 

"'Public office is the right, authority, and 

duty created and conferred by law by which, for a 

given period either fixed by law or enduringat 

the pleasureof the creating power, an individual 

is invested with some portion of the sovereign 

functions of the government to be exercised by 

him for the benefit of the public.' The correctness of this definition is nowhere questioned, 

so far as we know, and it is useless to add supporting authorities." 

We now must decide whether or not a public officer is such 

an employee,, servant, agent or independent contractor as is referred to in the definition of the word "chauffeur" in Section 1 

of, the Statute. 

There is very little authority on this question in Texas, 

but the little that has been written concerning Texas Law on the 

subject aswell as the authorities in other states indicate that 

a public officer is not such an employee, servant, agent or independent contractor. In 34 Tex. Jur. 325, it is said: 

Y?here is a material difference also between a 

publia ofrice and a public employment. The rela4. \tion between an office holder and the government 

under whioh he functions is not that of employer 

and employee, and their respective rights are not 

to be determined by application of the rules of 

contracts of employment. As said by Chief Justicd 

Marshall, 'Although an office is an employment, 

it does not follow that every employment is an 

office.' 
Mr. E. N. Sender, January 5, 1939, page 3 

"The most important distinction is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign 

functions of the government, to be exercised by 

him for the benefit of the public. Other distinctions are: that an office must be created by law, 

while an employment may be, and frequently is, created 

by contract; that officers are usually required 

to take an oath and serve for a definite term; and 

that the duties of an office are generally continhing and perraanent rather than temporary and transitory." 

This reasoning clearly applies to the word "employee", and 

it no doubt also applies to the word "servantv. Discussing the 

word "servantW, 29 Tex. Jur. 10, says: 

"In the language of the law, however, the word 

'servant' is used to embrace all classes of employees. 

It is synonymous with 'employee,' and includes all 

persons of whatever rank or position who are subject to the direction and control of another in 

any department of labor or business." 

This is in accord with what was said in the case of Texas 

Life Insurance Co. v. Roberts, 119 S. 'N. 926, as follows: 

"'The word 'servant' in our legal nomenolature haas 

broad significance, and embraces all persons of 

whatever rank or position who are in the employ 

and subject to the direction or control of another 

in any department of labor or business. Indeed, 

it may in most cases be said to be synonymous with 

employe.'" 

a 

The authorities in other states seem to bear out the same 

rule, that is that a public officer is not an employee or servant 

in the ordinary sense of those words. In 22 Ruling Case Law, 381 

it is said: 

“. . . on the whole an officer is distinguished 

from the employee in the greater importance, 

dignity, and independence of his position, in being required to take an official oath, and perhaps 

to give an official bona, in the more enduring 

tenure, and in the fact that the duties of the 

position axe prescribed,by law. Furthermore, a~ 

mere employee does not have the duties or responsibilities of a public officer." 
Mr. E. N. Bender, January 5, 1939, page 4 

In a case which decided that a city auditor was an "officer" 

and not an "employee" of a city, the Supreme Judicial Court of 

Massachusetts in the case of Attorney General vs. Tillinghast, 203 

M [ass. 539, 89 N. E. 1058, said: 

"The holder of an office must have intrusted to him. 

some portion of the sovereign authority of the state. 

His duties must not be merely clerical, or those 

only of an agent or servant, but must be performed 

in the execution or administration of the law, in 

the exercise of power and authority bestowed by 

the law. . . . A mere employe has no such duties 

of. responsibilities." 

. 

In passing on a statute which said "that eight hours shall 

constitute a day's work for all laborers, workmen, mechanins or 

other persons now employed", the Supreme Court of Kansas in the 

case of State V. City of Ottawa, 84 Kan. 100, 113 Pac. 391, said: 

"Officers are excluded by the use of the word *emploved;' 

an office being distinguis~hed'from an employment, in" 

~... . that it implies tenure, duration, emolument, and 

auty; . . .w 

In the case of Nissen v. City of Winston-Se&em, 206 N. C. 

888, 175 S. E. 310, the Supreme Court of North Carohina decided 

the issue of ðer or not the chief of the city'fire department 

was an nemployeen of the city or an "officerv of the city, it 

being provided by statute that "employees" should be compensated 

without defining the word "employees". fin that case the court 

held that the fire chief was an employee but recognized that certain 

officers of the city were not, and said: 

"Was the chief of the fire department of the city 

of Winston-Salem, who was killed in a motor vehicle 

wreck while answering a fire call, an employee within 

the meaning of the Workmen's Compensation Law?. 

. . . 

*Mc&uillin in his work on Municipal Corporations 

(2d Ed.) vol. 2, p. 38, quotes Judge Cooley, as follows: 'The officer is distinguished from the employee in the greater importance, dignity and 

independence of his position; in being required to. 

take an official oath, and perhaps give an official 

bond; in the liability to be called to account as 

a public offender for misfeasance or non-feasance 

in office, ana usually, though not necessarily in 

the tenure of his position.* 
L 

Mr. E. N. Bender, January 5, 1939, page 5 

"Obviously the mayor of a city would not become an 

employee merely because he occasionally picked UP 

a piece of hose or occasionally used a shovel or 

mattock when in the presence of a street force. 

Desultory-, disconnected, infrequent acts of manual 

labor performed by an administrative officer ard 

not reasonably required by the exigencies of the 

situation, would not classify such officer as a 

worIonan.l. 

The Florida Courts have held that a public officer is not 

an employee, and in the case of Dade County v. State, 95 Fla. 

465, 116 So. 72, the Supreme Court of Florida said: 

"An employment does not authorize the exercise 

in one's own right of any sovereign power or any 

prescribed independent authority of a governmental 

nature; and this constitutes perhaps the most 

decisive difference between an employment and 

an office, and between an employee and an 0fficer.n 

Similar rules were laid down in the cases of Ke&ly v. city 

of Bridgeport, (Conn.) 111 Conn. 667, 151 Atl. 268; State v. Clark 

(Ind.) 208 Ind. 402, 196 N. E. 234; and Bowden v. Gumberland County, 

(Me.) 123 Me. 359, 123 Atl. 166. 

The cases that lmve bee&cited above indicate that public 

officers are not employees and servants in the ordinary sense of 

the word. We think that for the same reasons they cannot be 

held to be agents in the ordinary usage of that word,~ especially 

as it is used in the definition of chauffeur. The writer has been 

unable to find any Texas authority on the question, but .it seems 

that the courts of other states hold that public officers are not 

agents in the ordinary sense along with their holdings that public 

officers are not servants and em10 ees. 

;; Wd~is’;;Ui’ 282 Ill. 599+ 

In the case~of People 

N E. 54, the Supreme Court 

: 

"In many cases it is difficult to determine,whether 

a person is an officer or merely an agent or employe 

of a municipality. It is even more.difficult to lay 

down any fixed rule to determine the question, in 

all cases, as to whether a person is an officer or 

merely an agent or employe of a municipality. Generally, an officer takes an oath of office,~while a 

mere agent or employee does not." 
Mr. E. N. Bender, January 5, 1939, page 6 

Similar language was used in the case of Lori'llard V. 

Town of Monroe, (N. Y.) 11 N. Y. 392, 62 Am. Dec. 120, in which 

it was said: 

ours) 

We must finally decides whether or not a public officer 

is an "independent contractor... A,well known definition of an 

independent contractor is the one stated by the Texas Commission 

of Appeals in the case of Lone Star Gas Co. v. Kelly, 46 S. W. 

(2d) 656, as follows: 

"As defined by the authorities, an independent 

contractor is one, who, exercising an independent 

employment, contracts to do a piece of work according to his own methods, and without being subject 

to the control of his employer except as to the 

result of his work." 

It will be noticed that one of the elements of the relationship of an independent-contractor to his superior is that of a 

contract. In other words, an independent contractor holds his 

position by virtue of a contract. Such is not true of a public 

officer. This distinction is made clear in 34 Tex. Jur. 324, where 

it says: 

"Officers hold their positions by election or 

appointment and not by contract. As we have seen 

i 
,.. r 

Wr. E. N. Bender, January 5, 1939, page 7 

above (Par. 2), an office involves a delegation 

to the holder of some portion of the sovereign 

functions of the government, to be exercised by 

him for the benefit of the public, and it embraces 

the ideas of tenure, duration, emolument and duties. 

But a public contract from its nature is necessarily 

limited in its duration and specific in its objects; 

the terms agreed upon define the rights and obligations of the parties, neither may deparkfrom them 

without the assent of the other. Such a contract 

is within the protection of the constitutional prohibition of the impairment of obligations, but a 

public,office is not. The prohiM.tion does not 

preclude the abolition.of an office or reduction 

in the compensation annexed to it during the term 

of an incumbent." 

Such was the holding in the Texas cases of Bonner v. 

Belsterling, 137 S. W. 1154; State v. Rigsby, 43 S. W. 1101; 

and City of Palestine v. West, 37 S. W. 783. 

By virtue of these authorities holding that a public 

officer does not hold his positions under a contract, we must 

conclude that a public officer is not under any circumstances 

an independent contractor. 

There is no doubt that a county commissioner is a public 

officer, and under the authorities cited above it is our conclusion that a county commissioner because of his position as 

a public officer is not an employee, servant, agent or independent 

contractor as those terms are used in the definition of a 

chauffeur in Article 6687a. 

It is our conclusion that a county co&missioner while 

driving an automobile belonging to the county and on county 

business is not a chauffeur within the meaning of Article 

6687a, and he does not have to-obtain a chauffeur's license. 

Very truly yours 

ATTORNEY GEhTERAL OF TEXAS _ 

.,&i!?ii,@b?f~ 

Assistant 

CR-N