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### THE **A ’** **PFO** 

### NEY GENERAL OF-XAS

HonorableW. C. Lindsey Criminal DistrictAttorney Jefferson County Beaumont, Texas Opinion No.

### C-386 Re: Constitutionalityof Article 5142, Vernon's Civil Statutes. Dear Mr. Lindsey:

You have requested our opinion on the validity of that portion of Article 5142,Vernon's Civil Statutes,authorizing the selectionas juvenile officer 'any school attendance officer or officers of the county, or of school districts in the county.' Article 5142,Vernon's Civil Statutes,provides in part: " . . s "In the appointment of all juvenile officers, the county judge and the County JuvenileBoard may select for such office any school attendance officer or officers of the county, or of schooldistricts in the county, thatmay be authorizedby law, and the salary and expense of such jo:nt juvenile officer or officers and attendance officers shall be paid jointly by the county and school authoritiesupon any basis of divisfon theymay agree upon." (Emphasisadded) Section 40 of Article XVI of the Constitutionof Texas provides in part:

"Noperson shall hold or exercise,at the same time,more than one Civil Office of emolument,except . s 0' (Exceptionnot applicable), The distinctionmade between an officer and an employee is stated in Aldine Independent SchoolDistrict v. Standley, 154 Tex. 547, 280 S.W.2d 57% (1956),and Dunbar v, Brazoria County, 224 S,W.2d~738 (Te~.Ci~,ftpp, 

### 1949, error ref.), as follows: "From the above authorities, it is apparent, we think, that the.determiningfactor which distinguishesa public officer from an employee is
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whether any sovereign function of thegovernment is conferredupon the Individual to be exercised by him for the benefit of the public largely independent of the control of others." In Dunbar v. Brazorla County, supra, the Court held that a county road engineerwas not an officerunder the provisions of Section 24 ofArticle V of the Constitution of Texas. InAldine IndependentSchool District v. Standley, supra, the Supremmt of Texas held th t an assessor-collectorof taxes appointedby the school distr&t board of trustees was not an officer,quoting the language of the Dunbar case referred to above. ref.), In Knox v. Johnson, 141 S.W.2d 698 (Tex.Civ.App.1940, error

the Court stated:

I,

. . . Much has been written on whether the occupant of a public position Is a public officer as contradistinguishedfrom a public employee. The best and most comprehensivediscussionof this subject that we have found is contained in State of Montana ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P.411, 53 A.L.R. 583-595,wherein decisions from many states are cited and reviewed. See, also, 34 Tex.Jur. B2, p,322; 46 C.J. 992, p.922; 22 R.C.L. 82, p-372. The rule deduced by the annotator in 53 A.L.R. 595, from numerous cases reviewed in determining the status of such a public position, is as follows: 'Itmay be stated,as a general rule deducfble from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbentwhich involve an exercise of someportion of the sovereignpower and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent;while a public employment on the other hand, is a position which lacks one ormore of the foregoingelements.'" In Knox v. Johnson9 supra, the Court held that the Superintendent of the San Antonio State Hospitalwas an officer, stating;

11 D

. 0 He is required to take the constitutional oath of office, and execute an officialbond as is required of other state officers. He is made a custodian of and responsible for stateproperty and state funds. His 'termof office' and the salary thereforare fixed'by law. Definite and specificgovernmentalduties and powers are imposed
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Hon. w. c. Lindsey, page 3 (c-386)

upon him in which the State as a whole is interested. Manifestly,he discharges strictly a governmental functionaffecting thepublic as a whole, and clearly is an officer of the State." Article 5142,Vernon's Civil Statutes,provides that the juvenile officer created by its provisions shall serve for a term not to exceed twoyears from the date of the appointment;requires the juvenile officer to take an oath of office and to file such oath of office in the office of the county clerk;prescribes the duties of the juvenile officer,which he exercisesby virtue of holding the office;provides for the removal from office by the power appointinghim. Applying theprinciplesannounced in the foregoing cases to the duties of juvenile officersprescribed in Article 5142, Vernon's Civil Statutes, it is our opinion that the juvenile officer is an officerwithin themeaning of Section 40 ofArticle XVI of the Constitution of Texas.

It is noted that under the expressprovisions of Article 5142, the juvenile officermay be "any officer of the county or any officer of a school district in the county." Therefore, the provisions of Article 5142 specificallyprovide for dual office holding in violation of the provisions of Section 40 of Article XVI of the Constitutionof Texas. You are, therefore,advised that the provisions of Article 5142, authorizing the selection for the office of juvenile officer "any officers of the county or of schooldistricts in the county" is unconstitutional,being in violation of the provisions of Section 40 of Article XVI of the Constitution of Texas. However, you state that the JuvenileBoard of Jefferson County has appointed as juvenile officers twomen who are employed on a contractualbasis by the Port Arthur Independent School District as truant officers. Under the submitted facts, as the persons selectedas truant officersare merely employees,' they can be appointed juvenile officersas two civil officesare not involved. SUJ4MARY

The provisions of Article 5142, authorizing the selection for the office of juvenile officer "any officers of the county, or of school districts in the county" is unconstitutional,being in violation of theprovisions of Section 40 of Article XVI of the Constitution of Texas. However, an

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Hon. W. C. Lindsey,page 4 (C-386)

employee of a school districtmay be appointed as a juvenile officer.Yours very truly, WAGGONER CARR Attorney General

Assistant JR:cg:ms APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Robert Norris Pat Bailey Jack Goodman Roy Johnson APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

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