### THEATTORNEYGENERAL

**Ausnnr 11.**  **%hXAS**

December

### 17 1948

Hon. Jack Rosa Opinion Ro.

### v-743 CriminalDistrlot Attorney Hidalgo County R8: Rdinburg,Texas

Dear Sir: The legality of one person being aimultaneously the County Treasurer and a parttime accountant in the office of the County Auditor.

Reference ismade to your recent requestwhich roads, in part, a8 follows:

"Mrs.Be1811Singleton ie the duly elscted qualified and aoting CountyTreasuPeP of didalgo County,Texas. On January 13, 1948, the two dlatrict jUC4389 of this CoWaty 8nteP8d the followl~ Order:

"'ORDERRAMIRG ASSISTART ARD ACCOulrTARTS, ARD PROVIDIRG SALARIESTRERRFOR,POR GOURTY AUDITOR, RIDATGO COURTY, TEXAS

"011 this day came on to be considered thematter of appointingAssistant and Accountants to the County Auditor, and It app8clrbg that proper appllaatlonhas been mad8 for the appPOva1 Of Salaries t0be pqid said assistant and accountants in said office;

"'It is, therefore,Ordered, Adjudged and Decreed that Mrs. Bass Williamsonbe, and she is hereby appointed Assistant County Auditor, and that the salary of the said -I&s.Bess Williamson be Tvo Hundred Dollars ($200.00) per moath, effectiveJanuary 1 194%.

"'And that S. J. Cardenasbe and he is’

,

Hon. Jack Ross, page 2 (v-743)

hereby appointedAccountant, and that the salary of the raid S. Jo krdenas be, and ishereby set at Two Hundred and Tventyfive Dollars ($225.00)per month, 8ff8CtlveJanuary 1, 1948,

"'And that Mrs, Helen Singletonbe, and she is hereby appointed **a** part time Accountant in the CountyAuditor"6 Office of Hidalgo County, **Texas,** and that the salary of the saidha. Helen Singleton be, and ishereby set at Fifty Dollars {$,,*OO)permonth, effectiveJanuary 1,

.
"'It Is further ordered that this OPder be Spread upon the minUt8s of the District Courts of Hidalgo, Texas, and that a 08rtifi8d copyhereof be furnished the Commissioner's Court of Hidalgo County,Texas.
"'This 13th day of January, A, D. 1948,

BRYCE FRRGUSOB Brycs Ferguson, Judge of the 92nd Dls,Ct,

W.R.BLALOCK W.R.BlalookJudge of. the 93rd Dls,Ct,s

"A certified copy of such Orderwas furnished the CommissionersCourt of this county and an Order pass8dby the Commlssioners Cowt in compliance therewith,Payments have been made to Wrs, Singl8tOn a8 directed in said Order.

"Youwill note that that portion of the order having to do with RN. Helen Singleton (Par.41, shows an appointment
as 'parttime aCCOUntant',and not as an asslstant or deputy.,,

**“ P(o**  oath of Office **was** required Of WIVO Singleton nor was she required to giv8bond in connectionwith her service as part time assistant in the offic8 of CountyAuditor, which course of actionwas based upon theEon. Jack Ross, page 3 (V-743)

decision of the County Auditor that she
was acting only as clericalhelp and not
as an assistant or deputy county auditor. I, therefore, respectfully ask for your Opinion on the fOllOVing qU8StiOn:
*QuestionRo. One:
"'May the County Auditor and District Judges lawfully appoint an **accoun** tant or other clericalhelp to perform duties in the office of the County Audi- '- tor without such accountant or other clericalhelp being designated an assFstant or deputy COUIlty

auditor?'

" QuestionRo. Two: “‘May an assistant,deputy, accountant or other clericalhelp hired by the County Auditor, approvedby the District Judges and certified to the Commissioners Court be lawfullypaid out of county funds when such asslstsnt,deputy, accountant OP other clericalhelp has not taken the oath of office for faithfulperformance of dUti8S as requiredby Art. 1650, R.C.S.?' "c$uestion

lo. Three:

'IMay an assistant,deputy, accountant or other clericalhelp hired by the County Auditor, approvedby the District Judges and certified to the Commissioner8 Courtbe lawfully paid out of county funds when such assistant, deputy, accountant Or other cl.erlcal help has not given a bond?'

:. '. " QuestionRo. Four: .' 'Way a duly elected, qualified and acting County Treasurer serve aa such Coun- ' ty Tr8aSUP8r and at th8 same time serve as an assistant or deputy county auditor, ap- @&dCyd qualified as provided in Art.

without being in violation of the pP&is&s of Art. 16 Section 40 Of the Constitution of the State of Texas?'Hon. Jack DOSS, page 4 (v-743)

**”**Question No. F~vQ:
**May the County of Hidalgo Texas lawfully pay the Sum of fifty do&rs ($50.- 00) per month to Mrs. &&en Singleton, the duly elected, qualified and acting County Treasurer of said County, for s8~vlces as 'part time accountant" in the office of the CountyAuditor of said countywhen such services renderedby the said Mrs. H818n gln8leton are not required ofh8P as County
reasurer and do not interferewith the discharge of those duties imposedupon her by **1aV** as County Treasurer, the said &a. H818n Singletonnot having taken an oath of office for faithfulperformance of duty in connectionwith her services as 'parttime accountant" in the office of County Auditor?D

U'&8stionDo, six: :~ "If 8x Officio Compensationmay **be** gPant8dby the CommissionersCourt ?Or ex officio servicesrendered by the County Treasurer,may paymentbe made for such s8PvicesPeZXd8P8d prior to the date of the Order of the Commission8rs **COUrt** granting the SaUb?"

The authority for the appointment of assistant
or deputy auditors is found in Art. 1650, **V,** C. S., and is, in prrt, as follows:

'The CountyAuditor of any county of this State may, at any time,with the consent of the District Judge or District Judges having jurisdictionaS hereinafter provided, appoint a first assistant and other assistantswho shallbe authorized to discharge such duties as may be assigned to themby the County Auditor and provided ior by **law,** In countieswhere only
one assistant is appointed, such assistant shallbe authorized to act fop the County Auditor duringhis absence or unavoidable detentionwith respect to such duties as are P8qUlr8dby law of the County Auditor. In counties in which more than one aSSiStant shallbe appointed, the County Audi-Eon. Jack Doss, page 5 (v-743)

tor may designate the aeaistantwho shall be authorised to act for him duringhis ', absence or unavoidabledetention. All of’ said assistants 

### shalltakethe'usualoath of officeforfaithfulperfornancre ,ofduty and may be required to give suchbond as the CountyAuditor **may** detepmine,which bond shallbe paid for by the oounty and shall run in favor of the county and of the CountyAuditor as their Interestmay appear.

"The CountyAuditor shallprepare a list of the number of deputies sought tobe appointed,their duties, qualification6and experience,and the salaries to be paid Bach, and shall certify the list to the District Judge, or in the event of more than one District Judge in the county, to the District Judges, and the District Judge or the District Judges, shall then oarefully consider the applicationfor the appointment of said assistants and may make all neceesary inquiries concerning the qualifications of the persons named, the positions nought to be filled and the reasonableness of the salaries requested, and If, after such consideration, the District Judge, or in the event ofmore than one District Judge, **a** majority of the District Judges shall apprOV8 the appolntments sought to be made or any number thereof,he or they~shallprepare a list of the appointees so approved and the salaries to be paid 8aoh and certify said list to the CommissionersCourt of said county. The Commissioners Court shall thereupon Order the amountpaid from the Grneral Fund of sald countyupon th8 performence of the services; and said Court shall appropriate adequate funds for the purpose;

. . . The CountyAudltor shallhave the right to discontinue the
**SerViCeS** of any assisteut employed in accordancewith the provisions of this Article,but no assistant shallbe employ;wieexcept in the manner herein provided. DistrictJudge or District Judges giving consent to the Auditor to appoint an **assis** tant or **assistants** shall annua1l.y have the right to withdraw such consent, and,che.nga the number of assistant5permitted.Hon. Jack Rosa, page 6 (V-743)

We do not believe that the above statute is authority,noP aPe v4 able to find any authority,whereby th8 County Audltor and District Judges may appoint an accountant or clericalhelp other than assistant OP deputy auditors. In the absence of such authority,your first question is ansvered in the negative.

We b8li8V8 it ismandatory that th8 asalatant
or deputy county auditor take,the oath as 1rovlded under Article 1650. Even 50, in 34 Tex, Jup, 61 ,we find the folloving:

'An officer de factohe5 b88n broadly defined as one who has the reputation of being the officerhe assumes to be, and yet is not Sgood officer in point of law also as one who, under color of right, ent8rS into the pOSSe55ion Of an Office and exercises the functions thereof, or who exercises the duties of the officeUnd8P color of a known and valid appointment or election,but falls to conform to someprecedentrequirement or condition, **ai** to take
an oath, give a bond, or the like.

In passing upon the question of whether a de 

### factoofficermay demand pay for servicesrendered as such in the C&S8 ofUhr v. Brown, 191 S,W. 379, the couPt said:

"Ithas been held in this state that a de facto officer can demand pay for his 

### ser- ~1086, and there iS much authority to the
same effect. We will not concern ouPs8lv86 with the side lssus as to the tPue rule to apply in such cases, for thesemen in good faith performed the services for which they
were paid by July ordinances, for which uhr voted, and there ~8~8 no de jure claimants of the offices and the salary incident thereto, so it clearly appears th%t they were entitldd t0 r8C8iV8 pay, o 0 0

In view of the foregoing, It is our opinion that an assistant OF deputy county auditor duly appolntedby the county auditor and approvedby the District Judges may be lawfullypaid out of county funds for S8rvic'.es rendered even though he has not taken the oath of office as requiredby Article 1650.Eon. Jack Ross, page 7 (V-743)

R4 furtherb8lieV8 that the voI?dingof Article 1650 leaves it within the sound diSoP8tiOn of the county auditor as to Vh8th8P he Shall PequiPe the assistant or deputy auditor to giV8 a bond. R8V4Pth81888, 8V8A if it b8 mandatory that the assistant or deputy county auditor give bond, the same rule of law as to taking the oath would be applicable **as** to the giving of a bond. He would be a de facto officer and, therefore,, aould **be** lawfully paid out of county funds even thoughhe has not given bond.

Your fourth question as pOS8d is not on8 wlthout difficulty. we muSt first determinewhether the assistant or deputy county auditor is a public! officer **iA** order t0 prOp8Ply **MaV8r** the Sam4 Sine8 g4CtfOA 40 Of ArtidLe XVI of the Stats Constitutionprovides that:

"Roperson shallhold or 4xc)rccia8, at the same time,moss than on4 Civil'Offio~e Of 8mOlUSl8At.

. . YariOUS 8XC8ptiOAS immaterialhere aP8 provld8d fOP in the abOV8 58CtfOn.

Without question, the County TreaSuPer is 'a public officer. Row, if the assistant OP deputy county auditor is a public officer, then the same person could not legallyhold the two'offlcss contemporaneouslysince it would be in violation of the above quoted QOnStitUtiOAal provision.

In the case of &uerlcan IndemnityCo. v. Red River Mat. Rank, 132 S.W.(2d) 47 Appeals (vPit of error dismissed 3,by the Court ‘of Civil the county auditorwas held tobe an officer of the county.

In 34 Tex. Jur. 323, we find the criteria for ;z;;;ning'vhether ,anemployment la a public office as

:
*'i)ffiC8'

embraces the idea6 Of teAUP8, duration, emolu.meAt and duties. Among the criteria for determiningvhethsr aA employ-, ment is a public office bF8 the fOllOViAg: the delegation of a portion of,the Sovereign functions of the govePAm8nt; the requirement of an official oath; that the powers entrusted are conferredby law and not by CoAtPact; and the fixing of the duration or term ofHon. Jack Ross, page 8 (V-743)

officee It is the duty pertaining to the office and the nature of that duty, and not the extent of authoritywhich make the incumbent an officer; and one la none the less
an officerbecause hi: authority is confined to narrow limits. D

.
In 22 R. C. L, 381, we find the following:

"

. It may be stated as a general r;l;fthat a position is a public officewhen it is createdby law,with duties cast on the incumbentwhich lnvolve an exercise of some portion of the sovereignpower and in the performance of which the public Is concerned,'andwhFch also are continuing in their nature and not occasional or Intermittent;while a public employment on the otherhand, is a positionwhich lacks one OF more of these elements."
Also, in the case of Commissioners~Court of Limestone County v. Garrett, 236 S.W. 970, the court, in distlnguishing an office from an employment,we find the following:

"'Themost important characteristic which distinguishesan office from an employment or contract Is that the creation and conferringof an office involves a delegation to the individual of some of the sovereign functions of government, to be exercisedby him for thebenefit of the public; that some portion of the sovereignty of the county, either legislative, executive OP judicial,attaches, for the timebeing, to be exercised for the public benefit 0

. 0 In distinguishingbetween an office and an employment,the fact that the powers in question are created and conferredby law is an important criterion. For, though an employmentmay be createdby law, It Is not necessarily so,but is often, if not usually, the creature of contract. A public office, on the otherhand, is never conferred by contract,but finds Its source and llmltatlons In some act or expression of the governmentalpower. 0 0 Public offi-Eon. Jack Ross, page 9 (V-743)

cers are usually requiredby the path of office, an8 this law to take fact go44 far of the duty.

. -_ in determining the character Rut the taking of the oath is not an lnalspensable criterion,and the officemay exist without it, for, as ha8 b88n said, th4 oath. IS a mere inoident and constitutesno part Of the Office.

. . If a duty be a continuing one,which is' definedby rule6 prescrlbedby the government, and not by contract, which an Individual is appointedby government to perform,who enter4 ,onthe duties pertaining to his stationwithout any contract d8finiN them, if those duties Continue though the person be changed, it s84ms very, difficult to distinguish such a charge or - employment from an office or the person wh&c. performs the duties frw **an** officer.

. .At the same.timo,hOWeVer, this element of continuancs.cannot**be** conald&ed as IndiSpenSabl8, for, if the other 418lllentS 83e~pr8138nt, it canmake no diffsrdhC8 *ether therebe
one act or a serba of acts tb be dono, whethi 8P the Office 8Xpir8S a8 soon as the OIL8 act is done, or is to be held for years, or during good behavior.' Mechem on Public Off&- C8rS, Sets. 4 to 8.

"'Publicoffice is the right, authoritf, and duty created and conferredby law by which, for a glvrn p8riod either fixed by law or enduring at the lng power, an lndlvldua Pleasure Of the Cr8atr is investedwith
someportion of the sovereign functions of the government tobe 8XOrCiS4dby him for th4 benefit of the public.' The correct$i8ss of this definition is nOWh8r8 qu88ti~On8&,80 far
as we know, and it is useless to add Supporting authorities. Kimbrough v. Barnett, 93 Tsx. 310, 55 S.W. 122.

“‘A m8n la not the less a public offi-.
cer Where his authority is Confined to narrow : limits; for It is the duty of his office and the nature of that duty which 

### makehim an~of?. ficer, and not the extent-ofhis a#thority.' Mechem on Public OffiCOrS, Sec. 9.

In the case of Bigham v. State, 148 S.u.(?d)Hon. Jack Ross, page 10 (v-743)



### 835,the Court of CrimlnaLAppeaLs 

### indeterminingthata deputy supervisor of the 011 and gas department of the Railroad Commissionwas an officerhad this to say:

"Itwas also held that an assistant director of the Motor Transport Division of the Railroad Commlssion.waseither an officer or a de facto officer. Again, W8 think that Art. 6030, supra,providing for the appointmentof a deputy supervisorand prescribinghis duties, gives ample grounds for a legal inference that such deputy was an officer in contemplationof this etatute. While not a necessary adjunct,nevertheless the fact that a person receiveshis positionby appointment is at least porsw' sive to some extent that such position is
an office; If he receives suchmerely by employment,the inferencemight lean toward the fact that he was but an employee. That
one is called a deputy carries with It the fact that he is an alter ego for his superior,being chargedwith all the duties as well as the responsibilitiesof his super

### ior,and empowered to perform the acts and discharge the duties of such superior,and to that extentbecoming the superior officerhimself in his superior'sabsence, If the superiorbe denominated an officer, tffen the deputywould also be such an officer,
Applying the standards set out in the foregoing authoritiesas to whether any public employmentamounts to a public office,w4 find that the assistant or deputy county auditors %re created under legislativeauthority, said assistants or deputiespossess a delegation of a portion of the sovereignpower of the government of the State to be exercised for the benefit of the public. The duties to be discharged are provided for by law since the statuteprovides that the assistant or deputy county audltors are authorizedto discharge such duties as may be assigned to themby the county auditor and provided for by lav. The term "providedfor by law"moans, of course, ipwse duties which are imposedupon the county auditorby

. The employment is continuing in its nature as the statutesprovide that after the list of assistants or deputies have been certifiedto the Commissioners'Courtby the District Judge OP District Judges, said court shall appropriate out of the general fund an adequate sum toHon. Jack Ross, page 11 (V-743)

pay for the performance of such servicesby ,the.asslstRntS or deputies. This amountmust **be** setup .lnthe countybudget annnally.

The Dis,triat

Judge or District Judges:glving consent to the auditor to appoint such asslst,ants or deputies shall annuallyhave the right to withdraw such consent. RenC8, we believe such assistants or deputies
are appointed for **a** year at least unless theybe deslgnated as temporary assistants,which is not the case,,; here.
Further, itwill be noted that under hrticle 1650, supra, the assistant or deputy county auditors are required to take the usual oath of office for faithful performance of such duty, and may be require8 by the county auditor to give bond.

Since those dUti8S~ ar4 imposed upon the SSSIStant or deputy county auditorsby law and not by contract, and further, since they are required to take the oath of office for faithfulperformance of such duties a8 are requiredby l.aw, and in view of the fOrego,ing; we believe the position of assistant or deputy county auditor comeswithin the definition of an office and Is not merely an employment. This being true, it IS ouropinion that the same person may not hold the office of.County Tr8Eisur8P end assistant or deputy county auditor eimultaneously.

By virtue of the answers to the foregoing questions, it is our opinion that questionNo. 5 shouldbe answered in the negative.

With reference to question No. 6, Article 3895,
v. c. s., which deals with compensationfor 4x officio services renderedby county officers is applicable to fee COLlnti8S

only.

Moreover, Article 39124, Section 3, V. C. S., provides, in part, as follows:

"Sec. 3. In all caseswhere the Conmissioners' Court shallhave determined that county officers or precinct officers Fn such county shallbe compensated for their services,

by the payment of an annual salary,neither the State of Texas nor any county shallbe chargedwith or pay to any: ,. i

.. , Ron. Jack Ross, page 12 (V-743)

..’

. .I’

. .'of..the.offlcers so compe,nsated,

sny fee or ~~c~ommlsslon'for

the performance of any or all of the duties of their officesbut " such Officers shall **r8b8iV4** said salary

in lieu of all~.other f88S,COmmiSSiOnSor : compensationwhich they~would ttherwise be authorized to retain; .,O

. Section 61 of ArticleXVI of the State Constitution Is, in,part, as follows?

,. ,. "All dlstrict~ officers in the State'of TeXaS nnd all county officers in COWIti8S having a population of 20,000 ormore, ac- ~cord~ing

to the then lest precsdingFederal Census, shall.

from the first day of January and thereafter, and subsequentto the first Regular OP gpecial~gession of 'theLegislature after the adoption of this Rasolutlon, be compensated on a salarybasis.

.. Ridelgo Countyhas a population of 106,059 acoordlng to the last Federal Census.

Therefore, in view of the foregoing, the COWIty TreaSurer of Hidalgo Countymay not be allowed eny 8X officio compensation. For this reason the necessity of 8. further discussion of questionNo. 6 is obviatprd.

There is no authoritywhereby the county auditormay appoint an accountant or clerical help other than assistant OP deputy county auditors.
An assistant or deputy county auditor duly'app.ointed or so acting is a de fact0 officer even though he has not taken the oath of office or given bond and may be lawfully paid out of county funds. 34 Tex, Jur. 614;Uhr v. Brown, 191 S.W. 379..

The same personmay not hold the office of county treasurer end nssistant OP deputy county auditor simultaneously, Art. 16, Sec. 40, State Constitution.. - Hon. Jack Ross, page 13 (v-743)

The county treasurer in a sal4ry cornty may not be allowed 8x officio compensationby the County Commlssion8rs~Court. SsC. 3, Art. 39128; 380, 61 Of &'t. xm, Stat8 Constitution,

Yours very truly,

ATTORRFIY

G~MLOFTEXAS

BA:mWerc:mw .