. . 

THE A’PFO NEY GENERAL 

OF-XAS 

Honorable W. C. Lindsey 

Criminal District Attorney 

Jefferson County 

Beaumont, Texas 

Opinion No. C-386 

Re: Constitutionality of 

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 selection as 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 Juvenile Board may 

select for such office any school attendance officer 

or officers of the county, or of school districts in 

the county, that may be authorized by 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 authorities upon any basis 

of divisfon they may agree upon." (Emphasis added) 

Section 40 of Article XVI of the Constitution of Texas provides in part: 

"No person shall hold or exercise, at the same 

time, more than one Civil Office of emolument, except . s 0' (Exception not applicable), 

The distinction made between an officer and an employee is 

stated in Aldine Independent School District 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.determining factor which distinguishes a public officer from an employee is 

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Hon. W. C. Lindsey, page 2 (C-386) 

whether any sovereign function of the government is conferred upon 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 engineer was not an officer under the provisions of 

Section 24 of Article V of the Constitution of Texas. In Aldine 

Independent School District v. Standley, supra, the Supremmt 

of Texas held th t an assessor-collector of taxes appointed by 

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 contradistinguished from a public employee. The 

best and most comprehensive discussion of 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: 'It may 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 incumbent which involve 

an exercise of some portion of the sovereign power 

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 or more of the foregoing elements.'" 

In Knox v. Johnson9 supra, the Court held that the Superintendent of the San Antonio State Hospital was an officer, stating; 

11 

D . 0 He is required to take the constitutional oath of office, and execute an official bond 

as is required of other state officers. He is made 

a custodian of and responsible for state property 

and state funds. His 'term of office' and the 

salary therefor are fixed'by law. Definite and 

specific governmental duties 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 function affecting the public 

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 two years 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 exercises by virtue 

of holding the office; provides for the removal from office by 

the power appointing him. 

Applying the principles announced in the foregoing cases 

to the duties of juvenile officers prescribed in Article 5142, 

Vernon's Civil Statutes, it is our opinion that the juvenile officer is an officer within the meaning of Section 40 of Article 

XVI of the Constitution of Texas. 

It is noted that under the express provisions of Article 

5142, the juvenile officer may be "any officer of the county or 

any officer of a school district in the county." Therefore, the 

provisions of Article 5142 specifically provide for dual office 

holding in violation of the provisions of Section 40 of Article 

XVI of the Constitution of 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 school districts 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 Juvenile Board 

of Jefferson County has appointed as juvenile officers two men who 

are employed on a contractual basis by the Port Arthur Independent 

School District as truant officers. Under the submitted facts, as 

the persons selected as truant officers are merely employees,' 

they can be appointed juvenile officers as two civil offices are 

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 the provisions of Section 40 of Article 

XVI of the Constitution of Texas. However, an 

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i . 

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

employee of a school district may 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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