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## THEA~TORNEY GENERAL OF TEXAS

WI& WILSON ATTGRNEYGENEI+AI. 

### July 30, 1957

HonorableJack Ross Opinion

### No.W-174 Chairman Board of Pardons and Re: Eligibility of a memParoles ber of the 55th LegislaAustin, Texas ture for appointmentby the Board of Pardons and

Dear

with Acts Paroles as Director of the Division of Parole Supervisionunder the provisions of Senate Bill 

### 154, 55th Legislature, Regular Session, 1957, Mr. Ross: and relatedmatters.

We have your letter asking the following questions regard to theprovisions of Senate Bill No. 

### 154, of the 55th Legislature, 1957.

"1

. In view of Article III, Section 

### 18 of the Constitutionof the State of Texas and assuming that an applicantwho Is now a member of the 55th Legislature shall resign that office, is he eligible for appointment by the Board of Pardons and Paroles as Director of theDivision of Parole Supervisionduring the term of office to which he was elected
a member of the 55th Le$islature?

"2. The Division of Parole Supervision is created for the discharge of the responsibility for the investigationand supervisionof all prisoners released on parole. The Director will be the executive officer of the Division. Article IV, Section 

### 28,provides that no person may be employed as a parole officer or supervisor, or be responsible for Investigations, surveillance,or supervisionof persons on parole unless he meets certain qualifications set out in the Act. Must the Director of the Division of Parole Supervisionmeet the quallfications set out in the secondparagraph of Article IV, Section 

### 28 of Senate Bill No. 

### 154?"Hon. Jack Ross, Page 2 (WW-174)

Section

## 18,

Article III of the Texas Constitution reads as follows:

'NO Senator or Representative shall, during the term for which he may be elected, be eligible to any civil office of profit under this State, which shallhave been created,or the emoluments of whichmay have been Increasedduring such term; no member of either House shall, during the term for which he is elected,be eligible to any office or place, the appointment to whichmay be made, in whole or in part, by either branch of the Legislature;and no member of either House shall vote for any othermember for any office whatever,which may be filled by a vote of the Legislature,except in such
cases as are in this Constitutionprovided. Nor shall anymember of the Legislaturebe interested,either directly or Indirectly, in any contractwith the State or any county thereof,authorizedby any lawpassed during the term for which he shall have been elected."

In order to answer your first question it is necessary to determine (1)whether the Director of the Dlvlslon of Parole Supervision Is a civil office of profit, and if not (2)whether the employment of theDirector is by virtue of a contractwith the State as mentioned in the last sentenceof the above quotedprovision of the Constitution,Article III, Section

## 18.

We have reached the aonclusion that the Director is not a civil office of profit for the reasons hereinafter set out.

It is well settled that themere fact that a statutemight mention a position as an office does not necessarilymean that it Is In fact an office. There
aremany decisions as to what constitutesan office
or officer as distinguished from an employee, such as Klmbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900) In which the Court said:

"The term 'office'Is definedby Mr. Mechem in his work on Public Officers (section II, thus: 'Publicoffice is the right, authority, and duty createdand conferredby law, by which, for a given period, either fixedby law, or enduring at thepleasure ofHon. Jack Ross, Page 3 (WW-174)

the creatingpower, an Individual is invested with someportion of the sovereign functions of the government, to be exercisedby him for the benefit of thepublic.' The correctness of this definition is nowhere questioned,so far as we know, and it is useless to add supporting authorities."

The latest decision we find by the Supreme Court of Texas on the subject is Aldine IndependentSchool Districtv. Standley 154 Tex. 547, 260 S W. 2d 578 (1955) In that cas;! the Courtheld thai the assessorcollectorof taxes of'an independent school district Is not a public officer, even though the statute (Article 2791V.A.C.S.) "createdthe office of assessor and collector". The collectorwas appointedby the Board of Trustees for a period of one year beginning February 1, 1950, at a monthly salary, and he took theproper oath of office and gave the bond requiredby the Board. About twomonths later, the Board adopted a resolution extending the contractone year from February 1, 1951. On June 29, 1951, the Board adopted a resolution "firing" the collector. After exhaustinghis administrative remedies,plaintiff (assessorand collector) filed suit claiming that he is an officer under ArticleXVI, Section 30 of the Constitutionand that as such his term of office is fixed at two years, and that the Board had no power to dischargehim except as providedby ArticleV, Section 24 of the Constitution. The Court held that he was not an officer, and after reviewing the statutespertaining to schoolboards approved the language in Dunbar v. Brazoria County, 224 S.W. 2d 739 (errorrefused) in which that Court had said:

"'From the above authorities, it is apparent,we think, that the determining factor which distinguishesa public officer from an employee is whether any sovereign function of the government is conferredupon the individual to be exercised bv him for the benefit of the public largely independent of the control of others.'"

Let us now examine and see what separate and independent "sovereignfunctionsof the government"
are conferredupon the Director "tobe exercisedby him for the benefit of thepublic" and "largely independentof the control of others".Hon. Jack Ross, Page 4 

### (WW-174)

When we examine the statute as a whole, we find that the sovereign functi!ans of government contained in said Act are vested solely in the Board. Section 1 of the Act provides:

It is also the:intentof thisAct to provide for the release of persons on parole and for themethod thereof, to designate the Board of Pardons and Paroles
as the responsibleagency of state government to recommend determinationof paroles and to further designate the Board of Pardons and Paroles as responsible for the investlgation and supervisionof persons released on parole."

We see, then, that at the very beginning of the Act it Is shown that the Board Is to be the res onslble

;*i of the State government for carrying ou -+k-

ions. .onsof the Act pertaining to the parole of perThis very sentence of the Act excludes the idea that the Director is vested with sovereign functions of governmentand on the contrary shows thathe is to be an employee of the Board to assist It in carrying out its responsibilityplaced upon It by Section 1 of the Act. ~If the Director could exercise sovereign functions Independentof the Board, then the provision of Section 1 placing responsibilityon the Board would fail.

Section 2h of the Act defines "Director"as the Director of the Division of Parole Supervision,and the word "Director"is notmentioned again until Section 

### 28.

Section 

### 26 of the Act provides:

"Sec.

### 26. The Board of Pardons and Paroles shall have general responsibility for the investigationand supervisionof all prisoners released on parole. For the discharge of this responsibility,there is hereby createdwith the Board of Pardons and Paroles a Division of Parole Supervision. Subject to the general direction of the Board of Pardons and Paroles, the Division of Parole Supervision Including its field staff shall be responsible for obtaining and assemblingany facts the Board of Pardons and Parolesmay desire in consideringparole eligibility,and for investigatingand supervisingparoled prisoners to see that the.’

Hon. Jack Ross, Page 

### 5 (WW-174)

conditionsof parole are compliedwith, and formaking such periodic reports on theprogress of parolees as the Boardmay desire,

We again see that the Board is to have the responsibilityas to paroledprisoners, and the Division to be headed by the Director (Section

### 28)'Is to assist 'theBoard. Notice that the statute says that the 'Divisionis created "withthe Board". This section also says that subject to the general direction of the Board, the Division including Its field staff shall do certain things, and make such periodic reports as the Board,may desire. Itis clear that the Board is not deprived of its sovereigngovernmental functions,and that the Division ismerely to assist theBoard in ,carryingout its responsibilityplaced upon it by the Act.
Section 

### 28 of the Act provides:

"Sec. 

### 28. Salaries of all employees of the Division of Parole Supervision shall be governed by AppropriationActs of the Legislature. The Board of Pardons and Paroles shall appoint a Director of the Division, and all other employees' shall be selectedby the Director,

v to such generalpolicies and regula ions as 'theBoard ,may,approve."

We see from the above the section Itselfmentions'theDirector'as an "employee". We realize that this alone does not make him necessarily an "employee"rather than an officer, but it can be .,,considered

thatthe Legislaturemight have intended 'thathe should be an employee rather than an officer, We say, then, that down through the above quotedpart of Section 

### 28 every sentenceand word of the Act clearly indicates that the Division under the dlrection of the Directon:isnot vested with sovereign functions of government independentof the Board and that every act of the Director is subject to the approval of the Board. The remainingportions of Section 

### 28 apply only',tothe,appointmentof parole officers and givesthe Director authority to prescribe additional qualificationsto,those stated "with the approval of the Board" whichmeans that the Board, and not the Director, is vested with the sovereign functions of government.Hon. Jack Ross, Page 

### 6 (~~-174)

Let us notice the remainingportions of the Act pertaining to the Director. It is true that Section 30 of the Actmentions the 'termsof office" of the Director,but this fact does not show that he is vested with any sovereignpower for the benefit of thepublic and "largely independent"of the control of the Board as stated in the Aldine case, supra. We have already seen that under well settled rules the
mere fact that a statute ma'y mention the position as an office does not necessarilymean that it is a public office.

It is also true that Section 30 OS the Act provides for the approval by the Director of themembers of the voluntaryparole boards who are appointedby the Chairman. Even though the statute does not require theBoard to approve the appointments,we cannot say that this is the exercise of a sovereign function of government, and even if it should be construedas the exercise of a sovereign function, such act and all othersmentioned in Sections 30 and 

### 31would not be exercised "largelyIndependent"of the Board.

We see, then, that when we examine the statute
as a whole we find that it Is clearly the intention to place the responsibilityon the Board Itself,and that none of the functions of the Director of the Division are sovereign functions or exercised "largely independent"of the Board.

Independentlyof any wording of the statutewe call attention to the fact that theAct does not provide for any tenureof office for theDirector. He is not required to take an oath. He is not required to give bond. These are usual requirements, though not necessary, of an officer. However, we believe that the fact that Section 

### 28 calls him an "employee" and the fact that he does not take an oath and in performingpractically every one of his duties,he is subject to the control of the Board, and since the Director has very little authority independentof the Board, we believe he is not an officer.

While the statute says nothing about the removal of the Director, we believe that in view of the fact that no term is set for the duration of his employment, he couldbe removed by the Board at any time. If he should be an officer, he cannotbe removed except by:

.

Hon. Jack Ross, Page 7 (WW-174)

trial as provided by ArticleXV, Section 7 of the Constitution. See Knox v. Johnson, 141 S.W. 2d 

### 698 (Tex.C.C.A. 1940, writ of error refused). We do not believe that it can be contended that the Board could not remove the Director at any time. If this is true, thenhe cannotbe an officer.

In Attorney General's Opinion O-6458 (1945) it
was held that the executive officer of the State Board of Vocational Educationwas not an officer,but was an employee and a member of the Legislature thathad passed the Act creating theposition was not disqualified from being appointed as such Director.

In Attorney General's Opinionv-308 (1947) it
was held that the Executive Secretary of theBoard of Regents for State Collegeswas not an officer,but thathe was an employee,and a member of the Legislature that created the positionwas not disqualified from holding it.

In AttorneyGeneral's OpinionWW-190 (1957) it
was held that theposition of Secretary-Directorof the TeachersRetirement System is not an officer,but that he is an employee.

A reference to the history of the Act under considerationshows that Senate Bill 154 as originally introducedand reported favorably,provided an entirely different set-up from that contained in the Act that
was finallypassed and which became a law.

Section 1 of this originalBill containeda provision which is important in determining legislative intent. The Act as originally considered clearlydid make the Director an officer rather than an employee. The fact that the Legislature rejected the following sentence in the original draft of Section 1 and in fact turned around and enacted the opposite is almost conclusiveof the question. The rejected sentence reads as follows:

"Recognizingthat determining the proper qualificationsfor parole, and the conditions of parole, to be quasi-judicialconsiderations suitable to a State agency such as the Board of Pardons and Paroles, whereas the day-to-day supervisionof parolees is a quite differentkind of administrativeresponsibility, it is the furtherpurpose of this Act to placeHon. Jack Ross, Page 

### 8 (~~-174)

the determinationof paroles in said Board, and the case-work supervisionof parolees in
a separatedivision of the ExecutiveDepartment under the general supervisionof the Governor."

The originalBill in Section 

### 26again provided that the Governor shall have general responsibility for the investigationand supervisionof all parolees, and also created a Division with the Executive Department known as Division of Parole Supervision,and further provided that subject to the general direction of the Governor this Division and its staff shall be responsible for the supervisionof parolees.

Section 

### 28 of the original Bill provided that the Governor shall appoint the Director, and that other employees selected shall be subject to the general policies and regulations of the Governor, and provided that the Governor should approve any additional qualificationsof employees the Directormight make.

We see, then, that under the originalBill as introduced it was provided that the Board was to be a quasi-judicialbody rather than an administrativebody. However, the Bill as passed as seen from Section 1 above quotedmakes theBoard an administrativebody and rejects all idea of having the Board to be only a quasijudicialbody and the new Division in the Executive Department to be the administrativebody. We see, as shown by Section 1 of the final Act, the entire responsibilitywas placed on the Board for administration which was divided under the originalAct. If this responsibility is to be placed on the Board, then if the Director shouldhave separate sovereign functions of government the Board certainly couldnot carry out its administrativeresponsibility.

In view of what we have said, it is our opinion that the Director is not an officer, and, therefore,
a member of the 55th Legislaturewhich enacted Senate Bill 

### 154,if he resigns as a member of the Legislature, will not be disqualifiedunder the first sentence of Article III, Section 

### 18 of the Constitution from being appointedDirector.

The othermatter to determine in answering the first question is whether a contract of employment is a "contractwith the State" as provided in the second and last sentence of Section 

### 18,Article III. . .

Hon. Jack Ross, Page 9 (WW-174)

of the Constitution.

We are of the opinion that said sentence is not intended to cover such contracts. The first clause of the first sentence of thisprovision of the Constitutionmentions only "a civil office of profit", and does not mention anything aboutan "employee"as distinguished from an "officer,"and, therefore,under said first clause an employeewould not be disqualified.

The second clause of the first sentence reads
as follows:

**‘ I**  no member of either House shall, d&i& the term for which he is elected, be eligible to any office or place, the appointment to whichmay be made, in whole
or in part, bx either branch of the Legislature; o O o

It is to be noticed that the second clause above quotednot only includes the word "office"but also includes the word "place"which we construe tomean any position of employment other than an office. This clause does not disqualifya member of the Legislature from accepting a "place"of employmentwhich was created by the Legislature of which he was a member. It merely provides that the Legislator is not eligible during the term for which he was elected to such office
or place when the appointmentmay be made in whole or in part by either branch of the Legislature. It appears, then, that the Constitution intended to cover the field of holding office and employment In the first two clauses of the section of the Constitution. Why did the Legislature in the first clause intend to disqualifymembers only from holding office if it
was also intended to disqualify them from holding a position of employment. It would have been just as easy to add the word "place"after the word 'office" in the first clause as it was to add that word in the second clause, The fact that the first clause disqualifies legislatorsonly from an office and the second clause disqualifies them not only from an office, but from 'employment"only when the appointment Ismade by the Legislature, shows that it was not intended to disqualify an "employee"where he is to be appointed by someone other than the Legislature. In other words, we believe that the first two clauses of Article III, Section 

### 18 are the sole. .

Hon. Jack Ross, Page 10 (WW-174)

provisions of the Constitutionwhich were intended to disqualifymembers of the Legislature from accepting
an office or position of employment,and that the last sentence of saidprovision, therefore,was intended to
cover a new field, or a contract of a differentnature, from thatprovided in the first two clauses.

The last sentence of said Article III, Section 

### 18 reads as follows:

11 Nor shall any member of the Legislaturebe interested,either directly or indirectly, in any contractwith the State,
or any county thereof, authorizedby any lawpassed during the term for which he shall have been elected."

We believe that this sentence is not to be construed as applying to a contract of employment,but
was intended to cover only what we would customarily call a contract to sell something or to perform some service other than as a regular employee of the State
or county. As stated above, we believe that the Constitutiondisposed of both officers and employees in the first two clauses of the first sentence,and, therefore,officers and contractsof employment are excluded from the last sentence.

Under the last sentence,a Legislator is foreverbarred from entering into a contractwith either the State or county if It was authorizedby the Legislature of which he was a member regardless of the number of years thatmight have intervened. See Lillard v. Freestone County, 

### 57 S.W. 338 (Tex. C.C.A. 1900). In that case, the contractwas to publish a delinquent tax list of the countymade with theman who was a member of the Legislature when the contractwas authorizedbut whose term had expired, and the contractwas held to be void.

Under the first clause of the constitutional provision in question a member of the Legislature may vote to create an office, either State or county, and he will be eligible to hold that office after his term as a member of the Legislature expires. We say this for the reason that the Courtshave held that
an officer does not hold office by virtue of a contract,but merely holds it by virtue of law. See 

### 34Tex. Jur. p. 324 Section 

### 3...”

. .

Hon. Jack Ross, Page 11 

### (WW-174)

If we are going to say that the word "contract" in the last sentence includesa contractof employment then we will have to say that a member of the Leglslaturemay vote to create an office and will be eligible for It after his term expires,but if he votes to create a minor position of employment in some department of the State or with a county,he is foreverbarred from holding suchminor position of employment. We do not believe that the Constitutionever intended such situation, and, therefore,we believe that the word "contract" does not include a contractof employment.

It is, therefore,our view that a member of the 55th Legislature that enacted Senate Bill 154 Is not disqualifiedby the last sentence of Article III, Section 18 of the Constitutionfrom accepting theplace of Director,

The answer to your second question involves a constructionof a part of Section 

### 28 of the Act reading as follows:

"It is expresslyprovided, however, that
no personmay be employed as a parole officer
or supervisor,or be responsible for the lnveatigations,surveillance,or supervision of nersons on oarole. unless he meets the foliowing qualifications togetherwith any other qualifications thatmay be specified y the Director of the Division, with the approval of the Board of Pardons and Parole 26 to 

### 55years of age, with four years of :s:
successfully completededucation In an accredited college or university, and two years of full timepaid employment in responsible correctionalwork with adults or juveniles, social welfare work, teaching,
or personnel work."

If it had been intended that the Director should have the same qualificationsas theparole officers and supervisors, it would have been an easymatter to add the word "Director", Under the well known rule of ejusdem generis only suchpersons who are to perform the duties of parole officers and supervisorsare included. It is true that the Director is the head of the Division and assists the Board in theperformance of its duties,but the duties of the Director do not require him to do field work such as is required of theparole officers who will report to. . ‘4.

Hon. Jack Ross, Page 12 

### (Wh'-174)

the Director. They are the employeeswho will come in contactwith theparolees and the Legislatureno doubt thought that only a man of good education and young and alert not to exceed 

### 55years of age should do this work.

Since only one person is to be appointedDlrectar, the Board can screen all applicants for such position and decide whether a person 

### 56years of age is too old and also decide whether he possess the qualificationsthe Board believes are necessary to carry on the work of Director.

In view of the above, it is our opinion that the Director need not necessarilypossess the qualifications set out In Section

### 28 for parole officers and supervIsors,but that the Board Is the sole judge of the qualifications.

SUMMARY

A member of the 55thLegislature that enacted Senate Bill 

### 154 Isnot disqualified as being appointedDirector of the Division of Parole Supervision by virtue of the provisions of Article III, Section 

### 18 of the Constitutionof TexasD
The Director to be appointedby the Board of Pardons and Paroles need not possess the qualificationsrequired of parole officers of supervisors.

Very trulyyours,
WILL WILSON Attornev General of Texas

APPROVED:

OPINION COMMITTEE: Larry Jones, Chairman Milton Richardson Joe G. Rollins
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