OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable 17. C. McDonald 

County Attorney 

Coke County 

Robert Leei Texas. 

Dear I& McDonald: 

ion whether 

the Federal Salary ~Stab 

authority conferred by 

sioners' Court of a 0 

j salary of the Coun 

zea by law. 

approval of the the Searias we can aeterdne, 

hereof provides:' 

sation where the relationship between him and the.person 

for whom he performs the servioes is the legal relationship of employee and agdoyer.. An employer is any person 

for whom an'individual performs any servioea, of whatever 

nature, as the employee of such person. The term 'employer' 
~Honorable W. C. l&Donald, page 2 

is not limited to private persons engaged in trade or business, 

but includes organizations which, under Section .lOl of the Code, 

are exempt from income taxation, and also Government aepartments and agencies. The existence of the legal relationship 

of employer and employee is to be ascertained in the light of 

the general purposes of the Act and the General Regulations, 

"Generally, the legal relationship of employer 

and employee exists when the person for whom services are 

performed has the right to oontrol and direct the individual 

who performs the servioes, not only as to the result to be 

acoomplishea by the work done, but also as to the details 

ana means by which that result is accomplished. An employee 

is generally subject to the will and oontrol of the employer 

not only as to what shall be done but how it.shall be done. 

In this oonuection it is unnecessary that the employer actually 

direct or oontrol the preoise manner in whioh the services are 

performed; it is sufficrienthat he has the right to do so. 

The right to discharge is also an important factor indicating 

that the person possessing that right is an employer. 

"Other faot,ors, oharacteristic of an employer, but : 

not necessarily present in every ease, are the furnishing 

of tools and the furnishing'of a .plaoe to work to the inaividual who performs the servioes. In general, if.an individual 

is sub&et to the oontrol or dire&ion or another merely as 

to the result~to be accomplished be thework~ana not as to 

the means and nethods for accomplishing the result, he is an 

independent contractor. An inaiviaual~performing services as 

an independent eontraator is not an~employee as to such services. 

Physicians, lawyers, arohiteofs, contractors and others who follow 

an independent trade, business or profession in mhich they offer 

their servioes to the public are~generally independent contraotors ana not employees. Whether the relationship ofemployeremployee exists will be determined upon an examination of the 

particular faots of eaoh aase. 

*If the relationship of employer and employee exists 

the designation or description of the relationship by the parzti;iiything other than that 'of employer and employee is 

If such relationship exists, it is of no ,consequenoe 

that the.&ployee is designated as a partner, co-adventurer, 

agent or independent oontraotor. The measurement; method or designation of compensation is immaterial if the r@ationehip of 

employer ana employee thus in faet exists. '~ 
Honorable W. C. McDonald, Page 3 

"An offlo& of a corporation IS au employee of 

the corporation but a director as such is not. A aireotor may be an employee,of the corporation, however, if 

he performs servioes for the corporation other than those 

required by attendance at and participation in meetings of 

the board of directors.n 

Sec. 1002.32 provides: 

"The provisions of these Regulations are applicable 

in every respect to any salary paid by,the United States, any 

State, Territory, or possession or political subdivision thereof, 

the ~District of Columbia, or any agency or instrumentality of any one 

or more of the foregoing, except where the amount of such salary is 

fixed by statute. The term 'statute' for purposes of this Section 

does not include a munieipal.ordinance or resolution enacted by a 

governmental unit inferior to a State, Territory, or possession. 

Salaries covered by the Federal Classifioation Act of 1923, as 

amended, are exoludea from the operation of these Regulations. Likewise, salaries, for example, or public school teachers which are 

paid~unaer salary schedules fixed by a state legislature and proviaing for maqdatory increments are excluded from the operation of these 

Regulations. See Section 1002.17.n 

The County Judge of a Texas county is an officer, not an 

exdployee. Consequently, the Regulations referred to do not affect 

the authority of the Commissioners *Court to increase his ex-officio 

salary. 

In view of the foregoing, it becomes &eoessary to aetermine whether the salary of the County Judge is "fixed by statute", 

within the meaning of Sea. 1002.32, where the statute fixes the 

maximum oompendation to be allowed the County Judges by the Commissioners' Court; or whether the provisions of See. 1002.l4 apply. 

It likewise becomes unnecessary to consider the question raised 

by you as to the oonstitutfonality of such regulations insofar as 

they purport to apply to the State and its political subdivisions 

and instrumentalities~.. 

Very truly yours 

ATTORNEYGENXXAL OF TEXAS 

BY (8) R. W. Fairchild 

Assistant 

RWF-MB 

AZ'PROVED DEC 21, 1942 

GEWiLD C. l&ANN 

ATTORN3EGENERBLOF TEXAS 

APPROVED OPINION COMMITTEE 

By GWB 

Chairman