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 conferredby 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 betweenhim 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 includesorganizations which, under Section .lOlof the Code, are exempt from income taxation, and also Governmentaepartments and agencies. The existenceof the legal relationship of employerand employee is to be ascertained in the light of the general purposes of the Act and the General Regulations,

"Generally,

the legal relationshipof employer and employeeexists when the person for whom services are performedhas 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.shallbe done. In this oonuectionit is unnecessarythat the employer actually direct or oontrol the preoise manner in whioh the services are performed;it is sufficrient hat he has the right to do so. The right to discharge is also an important factor indicating that the personpossessing 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 anothermerely as to the result~tobe accomplished be thework~ana not as to the means and nethods for accomplishingthe result, he is an independent

contractor. An inaiviaual~performing servicesas an independent

eontraatoris not an~employee as to such services. Physicians,lawyers, arohiteofs, contractorsand otherswho follow an independent

trade, business or profession in mhich they offer their servioes to the public are~generally independentcontraotors ana not employees. Whether the relationshipofemployeremployee existswill be determined upon an examinationof the particularfaots of eaoh aase.

*If the relationshipof employer and employee exists the designationor descriptionof the relationship by the parzti;iiything other than that 'ofemployerand employee is

If such relationshipexists, it is of no ,consequenoe that the.&ployee is designatedas a partner, co-adventurer, agent or independentoontraotor. The measurement; method or designation

of compensationis immaterialif the r@ationehip of employerana employee thus in faet exists. '~HonorableW. C. McDonald, Page 3

"An offlo& of a corporation IS au employee of the corporation

but a directoras such is not. A aireotor may be an employee,ofthe corporation, however, if he performs servioes for the corporation other than those requiredby attendanceat 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 possessionor political subdivisionthereof, 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 resolutionenacted by a governmental

unit inferior to a State, Territory,or possession. Salaries coveredby the Federal Classifioation Act of 1923, as amended, are exoludea from the operationof these Regulations.Likewise, salaries, for example, or public school teachers which are paid~unaersalary schedulesfixed by a state legislatureand proviaing for maqdatory incrementsare 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 Regulationsreferred to do not affect the authorityof 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 oompendationto be allowed the County Judges by the Commissioners' Court; or whether the provisionsof See. 1002.l4 apply. It likewise becomes unnecessaryto considerthe 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