OVBRFNLED BY O-7323 insofar as 

there is conflict. 

Honorable Joe C. Oladney 

Criminal District Attorney 

Henderson, Texas 

Dear Sir: Opinion NO. O-4020 

Re: 'Whether or not a superintendent 

of an independent school diatrlct is an "officer" under the 

terms of Article 159, P.C.; and 

other related questions. 

This Is in reply to your request for our opinion as to what crime, 

If any, certain facts outlined in your letter constitute. 

The facts you give are briefly a8 follows: A superintendent was 

employed by the school board of an independent school district. 

This district had one negro school, which had negro teachers. The 

superintendent collected money from the negro teachers, as follows: 

(a) One colored teacher paid the superintendent $15.00 per month. 

When the first pay day came the superintendent handed said teacher 

her check, and the superintendent told her she must pay, him $15.00 

each month which amount he said was his "traveling expenses". We 

assume from,your letter that the teacher believed said statement, 

but that It was false, and that the teacher accordingly paid the 

$15.00 to the superintendent each month. We further understand 

that the money was not "traveling expenses" and that itwas appropriated by the superintendent to his own use. 

(b(bthAnother colored teacher paid the superintendent $20.00 per 

The superintendent told her that she would have to pay him 

that amount each month to reimburse him because "he had'spent a 

lot of money around the colored school". We assume from your 

letter that she believed him and paid said sum each month, but 

that the statement that "he had spent a lot of money around the 

colored school" was false, 

(c) Another colored teacher paid the superintendent $17.50 per 

month during the school year. The teacher's salary check each 

month was $92.50 and the superintendent told her that all of 

her salary over $75.00 should be paid back to him, and that that 
. 

Honorable Joe C. Qladney, Page 2 o-4020 

part of her salary was being used 'to help get the school standardized". We understand that she relied on said statement and paid 

the superintendent that amount each month. We also understand that 

said statement in regard to said money being used to get the school 

standardized was false. 

It is our understanding that in each case the money collected 

from the teachers was appropriated by the superintendent to his 

own use, and that in the Instance of each false statement made by 

him he knew it was false when he made It. 

You ask two questions, as follows: 

1. Is the superintendent of an independent school district an 

officer within the meaning of Article 159 of the Penal Code? 

2. What offense, If any, is the superintendent in this case guilty 

of commlttlng? 

We will proceed to answer your first question, which involves 

Article 159, P.C. Said Article reads as follows: 

"Any legislative, executive or judicial officer who 

shall accept a bribe or consent to accept a bribe 

sunder an agreement or with an understanding that his 

act, vote, opinion or judgment shall be done or given 

in any particular manner or upon a particular side of 

any question, cause or proceeding which is or may 

thereafter by law be brought before him, or that he 

shall make any particular nomination, appointment, or 

do any other act or omit to do any act in violation 

of hisduty as an officer, shall be confined in the 

penitentiary not less than two nor more than ten years." 

The term "legislative, executive or judicial officer", in said 

article, is defined In the next article, to-wit, Article 160,Penal 

Code, as follows: 

"Under the name of executive, legislative and judicial 

officers are Included the governor, lieutenant-governor, 

comptroller, secretary of State, state treasurer, commissioner of the general land office, commissioner of 

agriculture, commissioner of Insurance, superintendent 

of public Instruction, members of the legislature, 

aldermen of all incorporated cities and towns, judges 

of the supreme, district and county courts and of the 

courts of appeals, attorney general, district and 

county attorneys, justices of the peace, mayors and 

judges of such city courts as may be organized by law, 

county commissioners, school truszees, and all other 

city, county and State officials. 
. - 

Honorable Joe C. Gladney, Page 3 O-4020 

These two articles were construed in the very recent case of 

Sigham v. State, (Tex.Ct.Cr.App.) 148 S. ?$. 2nd 835, in which 

the court held that a Deputy Supervisor of the Oil & Gas Department of the Railroad Commission was an officer within the meaning of this statute. However, it was pointed out that this particular position was created by a statute, to--bait, Article 6031, 

R.C.S., and that persons holding said position were referred to 

as "officers" in another statute, to-wit Article 1112b, R.C.S. 

In discussing the matter further, the court said: 

We early held in the case of State v. Brooks, 42 Tex. 62, 

th:;t a deouty sheriff was an officer within the contemplation of the law, and it was again so held in the case of 

Reed v. State, Tex. Cr. App., 149 S.;I. 2d 119, decided 

Fe~bruary 5, 1941, not yet reported (in state report). It 

was also held that en assistant director of the ?jIotor 

Transport Division of the Railroad Commission was either an 

officer or a de facto officer. 

6030, supra 

Again, we think that Art., 

, Froviding for the appointment of a deputy 

supervisor ano prescribing his duties, gives ample grounds 

for a legal inference that such deputy was an officer in 

contemplation of this statute. 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. 

An interestin;% case A-ox another state, to-wit, the case of 

iiootz v. ,:;elyea, 60 N.D. 741, 236 N.ii. 358, 75 A.L.R. 134'7, holds 

l;:1ai R school teacher is not an officer; and in that case t?ie 

court said: 

11 ,..%e duty of employing teachers is vested in the school 

board, anrl this is done by contract. The relationship is 

purely contractuel in this state. There is no fixed tenure 

of office when a teacher is employed 

i 

other than the provisions set forth in the contract. n this state the profession is not under civil service rules. Jhen a teacher 

is employed ~by a school district she is not employed as an 

officer and she does not become an officer. Her rights are 

measured by the terms of her contract. As said in Board 

of Education of South Milwaukee v. State ex rel. Reed, 100 

Wis. 455, 76 N.';i. 351, 353, the teacher (was a mere employee, 

and not an officer of the district in question, and had no 

official relations to it. His services were to be rendered 

in consideration of a certain stipulated compensation. He 

was not an officer, within the meaning of the constitution 

and laws.' 

"The relationship between the teacher and school directors 

is pureljj contractual. Clune v. School District, 166 r:is. 
Honorable Joe C. Gladney, Page 4 O-4020 

452, 166 N;iV. 11, 6 A.L.R. 7360 State ex rel. O'Neil Y. 

Blied et al,, 188 kvis. h42, 2ok N.ii. 213. 

"Heath v, Johnson, 36 W. Va. 762, 15 S.E. 980, says: 'The 

occupation of a teacher of a free school in this state 

is not a public office, but an employment.' 

*In State ex. rel. 

Ne. 

Lewellen et al. v. Smith et al., 49 

755, 69 N.W. 114, it is said: 'A contract to teach in 

one of the free schools of the ordinary districts is one 

of employment. The district, represented by the board, is 

an employer, and the teacher an employee. The teacher in 

such schools is not a public officer.'" 

In 75 American Law Reports 1352 is an annotation, which says: 

"The courts are almost unanimous in holding that the position'of a teacher is that of employee, resting on the contract of employment, and not that of public officer." 

It is our opinion that a superintendent of an independent school 

district is not an officer within the meaning of said Article 

159, P.C. Our answer to your first question is )tNo7'. 

We will now proceed to answer your second question. We have 

examined the statutes, and we have been una'ole to find that the 

acts of the acts of the superintendent, as outlined by you,, 

constitute any offense, except swindling. Swindling is defined 

in Article 1545, Penal Code, as follows: 

"'Swindling' is the acquisition of any personal or movable 

property, money or instrument of writing conveying or 

securing a valuable right, by means of some false or deceitful pretense or device, or fraudulent representation, with 

intent to appropriate the same to the use of the party so 

acquiring, or of destroying or impairing the right of the 

party justly entitled to the same." 

The punishment for swindling is prescribed in Article 1550, Penal 

Code, to be the same as the punishment for theft, which is prescribed in Articles 1421 and 1422, Penal Code, and that is, 

that if the value of the money or other property acquired is 

fifty dollars or over the punishment shall be not less than two 

nor more than ten years confinement in the penitentiary, and 

that if the value of the property is under fifty dollars and 

over five dollars the punishment shall be imprioonnent in jail 

not exceeding two years and by fine not exceeding five hundred 

dollars, or by such imprisonment without fine, and that if the 

value of the property is five dollars or under the punishment 

shall be by a fine not exceeding two hundred dollars. 
. . 

Honorable Joe C. Gladney, Page 5 ' .~ 0~4020 _. 

. 1. 

The elements of the offense of swindling are stated in the case 

of McDaniel v. State, 63 Tex. Cr. R. 260, 140 S.W. 232, in which 

the court said: 

1, ..,In Blum v. State, 20 Tex. App 57ti, 54 Am. Rep. 530, the 

court lays down four distinct elements of swindling, all 

of which must concur, as follows: (1) There must be an 

intent to defraud: (2) there must be an actual act of fraud 

~g!J3”[,, 

* (3) false pretenses must have been made by the 

the fraud must have been accomplished by 

me:ns o$ the false pretenses made use of for the purpose..'f 

See also the c;\se of Noblitt v. State, 103 Te:;. Cr. R. 550, 2dl 

s.iv. 849. 

Of course, a conviction for swindling under the facts outlined 

above depends upon said facts being proven, ?ild upon the jury, 

or the judge in the event a jur;r is waived, finding that said 

facts are true. 

Under the facts outlined above each transaction in which a sum 

of money -;ras acquired was a separate offense, and in no instance 

was the sum of money as much as fifty dollars. Therefore, each 

of the offenses were misdemeanors. 

It is our opinion that under the facts stated above the superintendent in question is guilty of several offenses of misdemeanor 

swindling. iie are unable to find that he is guilty of any other 

offense. 

We hope this oni::ion ~,:ill be of some value to you in your effort 

to prosecute the cases in question. 

Yours very truly 

AT'~ORNEY GENERAL GF TEXAS 

APPROVEZ' FEB. 19, 1742 

BY 

GROVER SELWRS Cecil C. Rotsch 

Assistant 

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