## THE ATTORNEX GENERAL OF TEXAS Aus-qv. 7%xAl37lsrll May,28, 1969

Honorable Frank Coffey Criminal DistrictAttorney Tarrant County Courthouse Fort Worth, Texas 76102

Dear Mr, Coffey: OpinionNo. M-409
Re: Whether a Criminal District Judge may also be appointed and serve as a member of the Board of Managers of a County Hospital District, without jeopardizinghis right to continue as a Criminal District Judge.

You have requested the opinion of this office regarding the above question.
Two provisions of the Texas Constitutionhave possible bearing upon the determination of your problem, Sections 33 and 40 of Article XVI. Section 40 is concernedwith the holding of two civil offices of emolument, and prohibits a District Judge from holding another civil office of emolument. Under Article 4494n. Section 5,Vernon's Civil Statutes,however, the members of the Board of Managers of a County Hospital District are to servewithout pay. Therefore, Section 40 does not apply to this problem. However, Section 33 isvery clearly in point. It is quoted, in pertinent part, as follows:

"TheAccounting Officers of this State shall neither draw nor pay a warrant upon the Treasury in favor of any person for salary or compensation as aqent, officer or appointee, who holdsat the same time any other office or position of honor, trust or profit, under this State, except as prescribed in this Constitution.

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Honorable Frank Coffey,page 2 (M-409 )

"It is furtherprovided, until 

### September1, 1969; and thereafter only if authorizedby the Legislatureby general law under such restrictions

### and limitations as the Legislature **may** prescribe, **that a**  non-elective State officer or employee may hold other non-elective offices or positions of honor, trust, or profit under 

### thisStateor the United States, if the other offices or positions are of benefit to the State of Texas or are requiredby State or Federal law, and there is no conflictwith the original office or position for which he receives salary or compensation. No member of the Legislature of **this** State may hold any other office or position of profit under this state, or the united States." (Emphasissupplied.) Inasmuch as a Criminal District Judge is an elective officer, he cannot fallwithin the exclusions set forth in the foregoing constitutionalprovision. We are left only with the determination of whether a member of the Board of Managers of a County Hospital District holds an "office or positionof honor, trust, or profit, under this State".
In determiningwhat constitutes an office,within the meaning of a constitutionalprovision, this officehas frequently applied the.criteria set forth in Barneyv. Hawkins, 79 Mont. 506, 257 

### P. 411, 53A.L.R. 583 (1927),to wit:

"Afteran exhaustive examination of the authorities, we hold that five elements are indispensablein any position of public employment, in order tomake it a public office of a civil nature: (1) Itmust be created by the Constitution or by the Legislature

### or created by a municipality or otherbody through authority conferredby the Legislature7 (2)Itmust possess a delegation'ofa portion of the sovereign power of government, to be exercised for the benefit of the public; (3)The powers conferred,and the duties to be discharged,must be defined,directly or impliedly,by the legislature 

### or through legislative authority: (4)The duties must be performed independentlyand without control of **a** 

### superiorpower,
**-2033-**Honorable Frank Coffey, page 3 (M-409 )


### other than the law, unless they be those of an inferior or subordinate office, created or authorizedby 

### the Legislature, and by it placed under the general control of a superior officer or body: 

### (5)It

### musthave some permanency and continuity, and not be only temporary or occasional." Applying the foregoing criteria to the Board of Managers of a County Hospital District, established underArticle 4494n, Vernon's Civil Statutes, it is 

### the opinion of this office that the powers, duties and responsibilitiesof a 

### memberof the Board of Managers of a County Hospital District are such as to make that position one of honor and trust within the meaning of Section 33, ArticleXVI, Texas Constitution.
In answer to your specific question, you are advised that in the event the Criminal District Judge in question is appointed to and accepts a position as a member of the Board of Managers of a County HospitalDistrict, the Judge would not be entitled to receive any State compensation for the positionhe nowholds. SUMMARY
A member of the Board of Managers of a County HospitalDistrict holds a position of honor or trust,within the meaning of Section 33,Article XVI, Texas Constitution, and an elective Criminal District Judge may not accept such an officewithout waiving his entitlement to compensation from the State. Yourp'very truly,

kRANP@ C.-MARTIN Attorscy General of Texas
PREPARED BY MALCOLM L. QUICK Assistant Attorney General APPROVED: OPINION COMMITTEE -2034-

### HonorableFrank Coffee. page 4 hl- 409)



### Kern8Taylor,Umirmm ~' .A-', George 

### Kelton,Vice-Chairman NeilWilliam Jim Swear

ingen Jack Spark6 Cam Larry W. Ii. GEPPERT Staff LegalAssistant HAWTHORNEPHILLIPS ExecutiveAssistant



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