-a . 

THEA~TORNEY GENERAL 

OF TEXAS 

WI& WILSON 

ATTGRNEYGENEI+AI. 

July 30, 1957 

Honorable Jack Ross Opinion No. W-174 

Chairman 

Board of Pardons and Re: Eligibility of a memParoles ber of the 55th LegislaAustin, Texas ture for appointment by 

the Board of Pardons and 

Dear 

with 

Acts 

Paroles as Director of 

the Division of Parole 

Supervision under the 

provisions of Senate Bill 

154, 55th Legislature, 

Regular Session, 1957, 

Mr. Ross: and related matters. 

We have your letter asking the following questions 

regard to the provisions of Senate Bill No. 154, 

of the 55th Legislature, 1957. 

"1 . In view of Article III, Section 18 

of the Constitution of the State of Texas 

and assuming that an applicant who 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 the Division of Parole Supervision during 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 investigation and supervision of 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 supervision of persons on 

parole unless he meets certain qualifications 

set out in the Act. Must the Director of the 

Division of Parole Supervision meet the quallfications set out in the second paragraph 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 shall have been 

created, or the emoluments of which may have 

been Increased during 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 which may be made, 

in whole or in part, by either branch of the 

Legislature; and no member of either House 

shall vote for any other member for any 

office whatever, which may be filled by a 

vote of the Legislature, except in such 

cases as are in this Constitution provided. 

Nor shall any member of the Legislature be 

interested, either directly or Indirectly, 

in any contract with the State or any county 

thereof, authorized by any law passed 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 the Director 

is by virtue of a contract with the State as mentioned 

in the last sentence of the above quoted provision 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 the mere fact that a 

statute might mention a position as an office does not 

necessarily mean that it Is In fact an office. There 

are many decisions as to what constitutes an 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 defined by Mr. 

Mechem in his work on Public Officers (section II, thus: 'Public office is the right, 

authority, and duty created and conferred by 

law, by which, for a given period, either 

fixed by law, or enduring at the pleasure of 
Hon. Jack Ross, Page 3 (WW-174) 

the creating power, an Individual is invested 

with some portion of the sovereign functions 

of the government, to be exercised by him for 

the benefit of the public.' 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 Independent School 

District v. Standley 154 Tex. 547, 260 S W. 2d 578 

(1955) In that cas;! the Court held thai the assessorcollector of taxes of'an independent school district 

Is not a public officer, even though the statute (Article 2791 V.A.C.S.) "created the office of assessor and 

collector". The collector was appointed by the Board 

of Trustees for a period of one year beginning February 

1, 1950, at a monthly salary, and he took the proper 

oath of office and gave the bond required by the Board. 

About two months later, the Board adopted a resolution 

extending the contract one year from February 1, 1951. 

On June 29, 1951, the Board adopted a resolution "firing" 

the collector. After exhausting his administrative 

remedies, plaintiff (assessor and collector) filed suit 

claiming that he is an officer under Article XVI, Section 30 of the Constitution and that as such his term 

of office is fixed at two years, and that the Board 

had no power to discharge him except as provided by 

Article V, Section 24 of the Constitution. The Court 

held that he was not an officer, and after reviewing 

the statutes pertaining to school boards approved the 

language in Dunbar v. Brazoria County, 224 S.W. 2d 739 

(error refused) in which that Court had said: 

"'From the above authorities, it is 

apparent, we think, that the determining 

factor which distinguishes a public officer 

from an employee is whether any sovereign 

function of the government is conferred upon 

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 "sovereign functions of the government" 

are conferred upon the Director "to be exercised by 

him for the benefit of the public" and "largely 

independent of 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:intent of this Act 

to provide for the release of persons on 

parole and for the method thereof, to designate the Board of Pardons and Paroles 

as the responsible agency of state government to recommend determination of paroles 

and to further designate the Board of Pardons 

and Paroles as responsible for the investlgation and supervision of 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 -+k- ou 

ions. 

.ons of 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 government and on the contrary shows that he is 

to be an employee of the Board to assist It in carrying 

out its responsibility placed upon It by Section 1 of 

the Act. ~If the Director could exercise sovereign 

functions Independent of the Board, then the provision 

of Section 1 placing responsibility on 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 not mentioned again until Section 28. 

Section 26 of the Act provides: 

"Sec. 26. The Board of Pardons and 

Paroles shall have general responsibility 

for the investigation and supervision of 

all prisoners released on parole. For the 

discharge of this responsibility, there is 

hereby created with 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 assembling any facts the Board of Pardons 

and Paroles may desire in considering parole 

eligibility, and for investigating and supervising paroled prisoners to see that the 
.’ 

Hon. Jack Ross, Page 5 (WW-174) 

conditions of parole are complied with, 

and for making such periodic reports on 

the progress of parolees as the Board may 

desire, 

We again see that the Board is to have the responsibility as to paroled prisoners, and the Division 

to be headed by the Director (Section 28)' Is to assist 

'the Board. Notice that the statute says that the 

'Division is created "with the 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 sovereign governmental functions, and 

that the Division is merely to assist the Board in 

,carrying out its responsibility placed 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 Appropriation Acts of the 

Legislature. The Board of Pardons and 

Paroles shall appoint a Director of the 

Division, and all other employees' shall 

be selected by the Director, 

such general policies and regula v ions to as 

'the Board ,may,approve." 

We see from the above the section Itself mentions'the Director'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 Legislature might have intended 

'that he should be an employee rather than an officer, 

We say, then, that down through the above quoted part 

of Section 28 every sentence and word of the Act 

clearly indicates that the Division under the dlrection of the Directon:is not vested with sovereign 

functions of government independent of the Board and 

that every act of the Director is subject to the 

approval of the Board. The remaining portions of 

Section 28 apply only',to the,appointment of parole 

officers and givesthe Director authority to prescribe 

additional qualifications to,those stated "with the 

approval of the Board" which means 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 remaining portions of the 

Act pertaining to the Director. It is true that 

Section 30 of the Act mentions the 'terms of office" 

of the Director, but this fact does not show that 

he is vested with any sovereign power for the benefit 

of the public 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 necessarily mean that it is a public 

office. 

It is also true that Section 30 OS the Act provides for the approval by the Director of the members 

of the voluntary parole boards who are appointed by 

the Chairman. Even though the statute does not require 

the Board to approve the appointments, we cannot say 

that this is the exercise of a sovereign function of 

government, and even if it should be construed as the 

exercise of a sovereign function, such act and all 

others mentioned in Sections 30 and 31 would not be 

exercised "largely Independent" 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 responsibility on 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. 

Independently of any wording of the statute we 

call attention to the fact that the Act does not provide for any tenure of office for the Director. 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 

performing practically every one of his duties, he 

is subject to the control of the Board, and since the 

Director has very little authority independent of 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 could be removed by the Board at any time. If he 

should be an officer, he cannot be removed except by 
: . 

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

trial as provided by Article XV, 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, 

then he cannot be an officer. 

In Attorney General's Opinion O-6458 (1945) it 

was held that the executive officer of the State Board 

of Vocational Education was not an officer, but was 

an employee and a member of the Legislature that had 

passed the Act creating the position was not disqualified from being appointed as such Director. 

In Attorney General's Opinion v-308 (1947) it 

was held that the Executive Secretary of the Board of 

Regents for State Colleges was not an officer, but 

that he was an employee, and a member of the Legislature that created the position was not disqualified 

from holding it. 

In Attorney General's Opinion WW-190 (1957) it 

was held that the position of Secretary-Director of 

the Teachers Retirement System is not an officer, but 

that he is an employee. 

A reference to the history of the Act under 

consideration shows that Senate Bill 154 as originally 

introduced and reported favorably, provided an entirely 

different set-up from that contained in the Act that 

was finally passed and which became a law. 

Section 1 of this original Bill contained a 

provision which is important in determining legislative 

intent. The Act as originally considered clearly did 

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 

conclusive of the question. The rejected sentence 

reads as follows: 

"Recognizing that determining the proper 

qualifications for parole, and the conditions 

of parole, to be quasi-judicial considerations suitable to a State agency such as the 

Board of Pardons and Paroles, whereas the 

day-to-day supervision of parolees is a quite 

different kind of administrative responsibility, 

it is the further purpose of this Act to place 
Hon. Jack Ross, Page 8 (~~-174) 

the determination of paroles in said Board, 

and the case-work supervision of parolees in 

a separate division of the Executive Department under the general supervision of the 

Governor." 

The original Bill in Section 26 again provided 

that the Governor shall have general responsibility for 

the investigation and supervision of 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 supervision of 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 qualifications of employees the Director might make. 

We see, then, that under the original Bill as 

introduced it was provided that the Board was to be a 

quasi-judicial body rather than an administrative body. 

However, the Bill as passed as seen from Section 1 

above quoted makes the Board an administrative body and 

rejects all idea of having the Board to be only a quasijudicial body and the new Division in the Executive 

Department to be the administrative body. We see, as 

shown by Section 1 of the final Act, the entire responsibility was placed on the Board for administration 

which was divided under the original Act. If this 

responsibility is to be placed on the Board, then if 

the Director should have separate sovereign functions 

of government the Board certainly could not carry out 

its administrative responsibility. 

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 Legislature which enacted Senate 

Bill 154, if he resigns as a member of the Legislature, 

will not be disqualified under the first sentence of 

Article III, Section 18 of the Constitution from 

being appointed Director. 

The other matter to determine in answering 

the first question is whether a contract of employment 

is a "contract with 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 this provision of the Constitution mentions only "a civil office of profit", and 

does not mention anything about an "employee" as 

distinguished from an "officer," and, therefore, under 

said first clause an employee would 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 which may 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 

quoted not only includes the word "office" but also 

includes the word "place" which we construe to mean any 

position of employment other than an office. This 

clause does not disqualify a member of the Legislature 

from accepting a "place" of employment which 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 appointment may 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 

disqualify members 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 legislators only from an office and the 

second clause disqualifies them not only from an 

office, but from 'employment" only when the appointment Is made 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 Constitution which were intended to 

disqualify members of the Legislature from accepting 

an office or position of employment, and that the last 

sentence of said provision, therefore, was intended to 

cover a new field, or a contract of a different nature, 

from that provided in the first two clauses. 

The last sentence of said Article III, Section 

18 reads as follows: 

11 Nor shall any member of the Legislature be interested, either directly or 

indirectly, in any contract with the State, 

or any county thereof, authorized by any 

law passed 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 

Constitution disposed of both officers and employees 

in the first two clauses of the first sentence, and, 

therefore, officers and contracts of employment are 

excluded from the last sentence. 

Under the last sentence, a Legislator is 

forever barred from entering into a contract with 

either the State or county if It was authorized by 

the Legislature of which he was a member regardless 

of the number of years that might have intervened. 

See Lillard v. Freestone County, 57 S.W. 338 (Tex. 

C.C.A. 1900). In that case, the contract was to 

publish a delinquent tax list of the county made 

with the man who was a member of the Legislature 

when the contract was authorized but whose term had 

expired, and the contract was 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 Courts have held that 

an officer does not hold office by virtue of a contract, but merely holds it by virtue of law. See 

34 Tex. 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 includes a contract of employment 

then we will have to say that a member of the Leglslature may 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 forever barred from 

holding such minor position of employment. We do not 

believe that the Constitution ever intended such situation, and, therefore, we believe that the word "contract" 

does not include a contract of employment. 

It is, therefore, our view that a member of the 

55th Legislature that enacted Senate Bill 154 Is not 

disqualified by the last sentence of Article III, 

Section 18 of the Constitution from accepting the place 

of Director, 

The answer to your second question involves a 

construction of a part of Section 28 of the Act reading as follows: 

"It is expressly provided, however, that 

no person may 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 together with any 

other qualifications that may be specified 

y the Director of the Division, with the 

approval of the Board of Pardons and Parole 

26 to 55 years of age, with four years of 

:s : 

successfully completed education In an 

accredited college or university, and two 

years of full time paid employment in responsible correctional work with adults or 

juveniles, social welfare work, teaching, 

or personnel work." 

If it had been intended that the Director should 

have the same qualifications as the parole officers and 

supervisors, it would have been an easy matter to add 

the word "Director", Under the well known rule of 

ejusdem generis only such persons who are to perform 

the duties of parole officers and supervisors are 

included. It is true that the Director is the head 

of the Division and assists the Board in the performance of its duties, but the duties of the Director 

do not require him to do field work such as is 

required of the parole officers who will report to 
. . ‘4. 

Hon. Jack Ross, Page 12 (Wh'-174) 

the Director. They are the employees who will come in 

contact with the parolees and the Legislature no doubt 

thought that only a man of good education and young and 

alert not to exceed 55 years of age should do this work. 

Since only one person is to be appointed Dlrectar, the Board can screen all applicants for such 

position and decide whether a person 56 years of age 

is too old and also decide whether he possess the 

qualifications the 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 necessarily possess 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 55th Legislature that 

enacted Senate Bill 154 Is not disqualified as being appointed Director 

of the Division of Parole Supervision 

by virtue of the provisions of Article 

III, Section 18 of the Constitution of 

Texas D 

The Director to be appointed by the 

Board of Pardons and Paroles need not 

possess the qualifications required of 

parole officers of supervisors. 

Very truly yours, 

WILL WILSON 

Attornev General of Texas 

APPROVED: 

OPINION COMMITTEE: 

Larry Jones, Chairman 

Milton Richardson 

Joe G. Rollins 

HGC:jas 

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