THE ATTORNEX GENERAL 

OF TEXAS 

Aus-qv. 7%xAl37lsrll 

May,28, 1969 

Honorable Frank Coffey 

Criminal District Attorney 

Tarrant County Courthouse 

Fort Worth, Texas 76102 

Dear Mr, Coffey: 

Opinion No. 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 jeopardizing his 

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 Constitution have possible bearing upon the determination of your problem, Sections 33 and 40 

of Article XVI. Section 40 is concerned with 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 

serve without pay. Therefore, Section 40 does not apply to 

this problem. However, Section 33 is very clearly in point. 

It is quoted, in pertinent part, as follows: 

"The Accounting 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. 

II 

. . . 

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. 

‘. . 

. 

Honorable Frank Coffey, page 2 (M- 409 ) 

"It is further provided, until September 1, 1969; 

and thereafter only if authorized by the Legislature by 

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 

this State or the United States, if the other offices 

or positions are of benefit to the State of Texas or 

are required by State or Federal law, and there is 

no conflict with 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." (Emphasis supplied.) 

Inasmuch as a Criminal District Judge is an elective officer, 

he cannot fall within the exclusions set forth in the foregoing 

constitutional provision. 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 position of honor, trust, 

or profit, under this State". 

In determining what constitutes an office, within the 

meaning of a constitutional provision, this office has frequently applied the.criteria set forth in Barney v. Hawkins, 

79 Mont. 506, 257 P. 411, 53 A.L.R. 583 (1927), to wit: 

"After an exhaustive examination of the authorities, 

we hold that five elements are indispensable in any 

position of public employment, in order to make it a 

public office of a civil nature: (1) It must be 

created by the Constitution or by the Legislature or 

created by a municipality or other body through authority conferred by the Legislature7 (2) It must 

possess a delegation'of a 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 

independently and without control of a superior power, 

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Honorable Frank Coffey, page 3 (M-409 ) 

other than the law, unless they be those of an inferior 

or subordinate office, created or authorized by the 

Legislature, and by it placed under the general control 

of a superior officer or body: (5) It must have 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 under Article 4494n, 

Vernon's Civil Statutes, it is the opinion of this office that 

the powers, duties and responsibilities of a member of 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, Article XVI, 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 Hospital District, the Judge would not be entitled 

to receive any State compensation for the position he now holds. 

SUMMARY 

A member of the Board of Managers of a County 

Hospital District 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 office without 

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 

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Honorable Frank Coffee. page 4 hl- 409) 

Kern8 Taylor, Umirmm ~' .A-', 

George Kelton, Vice-Chairman 

Neil William 

Jim Swear ingen 

Jack Spark6 

Cam Larry 

W. Ii. GEPPERT 

Staff Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant 

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