### OVBRFNLEDBY O-7323 insofaras there is conflict.

HonorableJoe C. Oladney CriminalDistrictAttorney Henderson,Texas
Dear Sir: OpinionNO. O-4020 Re: 'Whetheror not a superintendent of an independentschooldiatrlct is an "officer"under the terms of Article 159, P.C.; and other relatedquestions. This Is in reply to your request for our opinionas to what crime, If any, certainfacts outlinedin your letter constitute. The factsyou give are brieflya8 follows: A superintendent was employedby the schoolboard of an independentschooldistrict. This districthad one negro school,which had negro teachers. The superintendent

collectedmoney from the negro teachers,as follows: (a) One coloredteacherpaid the superintendent $15.00per month. When the firstpay day came the superintendent handed said teacher her check,and the superintendent told her she must pay, him $15.00 eachmonth which amounthe saidwas his "travelingexpenses". We assume from,yourletter that the teacherbelievedsaid statement, but that It was false,and that the teacheraccordingly paid the $15.00 to the superintendent eachmonth. We furtherunderstand that the money was not "travelingexpenses"and that itwas appropriatedby the superintendent to his own use. (b(bthAnother

coloredteacherpaid the superintendent $20.00per The superintendent told her that she would have to pay him that amount each month to reimbursehim because "he had'spenta lot of money around the colored school". We assume fromyour letter that she believedhim and paid said sum eachmonth,but that the statementthat "hehad spent a lot of money around the colored school"was false, (c) Another coloredteacherpaid the superintendent $17.50per month during the schoolyear. The teacher'ssalarycheck each month was $92.50and the superintendent told her that all of her salaryover $75.00 shouldbe paid back to him, and that that.



### HonorableJoe C. Qladney, Page 2 o-4020

part of her salarywas being used 'to help get the school standardized". We understandthat she relied on said statementand paid the superintendent that amount eachmonth. We also understandthat said statementin regard to saidmoney being used to get the school standardized

was false.
It is our understandingthat in each case the money collected from the teacherswas appropriated by the superintendent to his own use, and that in the Instanceof each false statementmade by him he knew it was falsewhen he made It.
You ask two questions,as follows: 1. Is the superintendent of an independentschooldistrictan officerwithin themeaning 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 answeryour first question,which involves Article 159, P.C. Said Articlereads as follows: "Any legislative,

executiveor 

### judicialofficerwho shall accepta bribe or consentto accepta bribe sunder an agreementor with an understandingthat his act, vote, opinionor judgmentshallbe done or given in any particularmanner or upon a particularside of any question,cause or proceedingwhich is or may thereafterby law be broughtbeforehim, or that he shallmake any particularnomination,appointment,or do any other act or omit to do any act in violation of hisduty as an officer,shallbe confined in the penitentiarynot less than two nor more than ten years." The term "legislative, executiveor judicialofficer",in said article,is defined In the next article,to-wit,Article 160,Penal Code, as follows: "Under the name of executive,legislativeand judicial officersare Includedthe governor,lieutenant-governor, comptroller,secretaryof State, state treasurer,commissionerof the general land office,commissionerof agriculture,commissioner of Insurance,superintendent of public Instruction, members of the legislature, aldermenof all incorporatedcitiesand towns, judges of the supreme,districtand county courtsand of the courts of appeals,attorneygeneral,districtand countyattorneys,justicesof the peace,mayors and judgesof such city courtsas may be organizedby law, county commissioners, school truszees,and all other city, countyand 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 officerwithin 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 officerwithin 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, anrlthis 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 

### servicerules. 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 imprisonmentwithout 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 swindlingare 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;ris 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. iieare 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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