THEATTORNEYGENERAL 

Ausnnr 11. %hXAS 

December 17 1948 

Hon. Jack Rosa Opinion Ro. v-743 

Criminal Distrlot 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 is made to your recent request which 

roads, in part, a8 follows: 

"Mrs. Be1811 Singleton ie the duly elscted qualified and aoting County TreasuPeP 

of didalgo County, Texas. On January 13, 

1948, the two dlatrict jUC4389 of this CoWaty 8nteP8d the followl~ Order: 

"'ORDER RAMIRG ASSISTART ARD ACCOulrTARTS, ARD PROVIDIRG SALARIES TRERRFOR,POR GOURTY AUDITOR, RIDATGO COURTY, TEXAS 

"011 this day came on to be considered 

the matter of appointing Assistant and Accountants to the County Auditor, and It app8clrbg that proper appllaatlon has been 

mad8 for the appPOva1 Of Salaries t0 be 

pqid said assistant and accountants in said 

office; 

"'It is, therefore, Ordered, Adjudged 

and Decreed that Mrs. Bass Williamson be, 

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, effective January 1 

194%. 

"'And that S. J. Cardenas be and he is 
’ , 

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

hereby appointed Accountant, and that the 

salary of the raid S. Jo krdenas be, and 

is hereby set at Two Hundred and Tventyfive Dollars ($225.00) per month, 8ff8Ctlve January 1, 1948, 

"'And that Mrs, Helen Singleton be, 

and she is hereby appointed a part time 

Accountant in the County Auditor"6 Office 

of Hidalgo County, Texas, and that the 

salary of the said ha. Helen Singleton 

be, and is hereby set at Fifty Dollars 

{$,,*OO) per month, effective January 1, 

. 

"'It Is further ordered that this OPder be Spread upon the minUt8s of the District Courts of Hidalgo, Texas, and that a 

08rtifi8d copy hereof 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.Blalook Judge of. 

the 93rd Dls,Ct,s 

"A certified copy of such Order was 

furnished the Commissioners Court of this 

county and an Order pass8d by the Commlssioners Cowt in compliance therewith, Payments have been made to Wrs, Singl8tOn a8 

directed in said Order. 

"You will note that that portion of 

the order having to do with RN. Helen 

Singleton (Par. 41, shows an appointment 

as 'part time aCCOUntant', and not as an 

asslstant or deputy.,, 

“P(o oath of Office was required Of WIVO 

Singleton nor was she required to giv8 bond 

in connection with her service as part time 

assistant in the offic8 of County Auditor, 

which course of action was based upon the 
Eon. Jack Ross, page 3 (V-743) 

decision of the County Auditor that she 

was acting only as clerical help and not 

as an assistant or deputy county auditor. 

I, therefore, respectfully ask for your 

Opinion on the fOllOVing qU8StiOn: 

*Question Ro. One: 

"'May the County Auditor and District Judges lawfully appoint an accountant or other clerical help to perform 

duties in the office of the County Audi- '- 

tor without such accountant or other clerical help being designated an assFstant or 

deputy COUIlty auditor?' 

" Question Ro. Two: 

“‘May an assistant, deputy, accountant or other clerical help hired by the 

County Auditor, approved by the District 

Judges and certified to the Commissioners 

Court be lawfully paid out of county funds 

when such asslstsnt, deputy, accountant 

OP other clerical help has not taken the 

oath of office for faithful performance of 

dUti8S as required by Art. 1650, R.C.S.?' 

"c$uestion lo. Three: 

'IMay an assistant, deputy, accountant or other clerical help hired by the 

County Auditor, approved by the District 

Judges and certified to the Commissioner8 

Court be lawfully paid out of county funds 

when such assistant, deputy, accountant Or 

other cl.erlcal help has not given a bond?' 

:. '. 

" Question Ro. 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 

County Auditor of said county when such services rendered by the said Mrs. H818n gln8 

leton are not required of h8P as County 

reasurer and do not interfere with the discharge of those duties imposed upon her by 

1aV as County Treasurer, the said &a. H818n 

Singleton not having taken an oath of office 

for faithful performance of duty in connection with her services as 'part time accountant" in the office of County Auditor?D 

U'&8stion Do, six: 

:~ 

"If 8x Officio Compensation may be 

gPant8d by the Commissioners Court ?Or ex 

officio services rendered by the County 

Treasurer, may payment be made for such 

s8Pvices PeZXd8P8d 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 County Auditor of any county of 

this State may, at any time, with the consent of the District Judge or District 

Judges having jurisdiction aS hereinafter 

provided, appoint a first assistant and 

other assistants who shall be authorized 

to discharge such duties as may be assigned to them by the County Auditor and provided ior by law, In counties where only 

one assistant is appointed, such assistant 

shall be authorized to act fop the County 

Auditor during his absence or unavoidable 

detention with respect to such duties as 

are P8qUlr8d by law of the County Auditor. 

In counties in which more than one aSSiStant shall be appointed, the County Audi- 
Eon. Jack Doss, page 5 (v-743) 

tor may designate the aeaistant who shall 

be authorised to act for him during his ', 

absence or unavoidable detention. All of’ 

said assistants shall take the'usual oath 

of office for faithful perfornancre ,of duty 

and may be required to give such bond as 

the County Auditor may detepmine, which 

bond shall be paid for by the oounty and 

shall run in favor of the county and of the 

County Auditor as their Interest may appear. 

"The County Auditor shall prepare a 

list of the number of deputies sought to be 

appointed, their duties, qualification6 and 

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 

of more 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~shall prepare a list of 

the appointees so approved and the salaries 

to be paid 8aoh and certify said list to the 

Commissioners Court of said county. The Commissioners Court shall thereupon Order the 

amount paid from the Grneral Fund of sald 

county upon th8 performence of the services; 

and said Court shall appropriate adequate 

funds for the purpose; . . . The County Audltor shall have the right to discontinue the 

SerViCeS of any assisteut employed in accordance with the provisions of this Article, but no assistant shall be employ;wieexcept in the manner herein provided. 

District Judge or District Judges giving 

consent to the Auditor to appoint an assistant or assistants shall annua1l.y have the 

right to withdraw such consent, and,che.nga 

the number of assistant5 permitted. 
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 clerical help other than assistant OP deputy auditors. In the 

absence of such authority, your first question is ansvered in the negative. 

We b8li8V8 it is mandatory that th8 asalatant 

or deputy county auditor take, the oath as 

1 

rovlded under 

Article 1650. Even 50, in 34 Tex, Jup, 61 , we find the 

folloving: 

'An officer de facto he5 b88n broadly defined as one who has the reputation 

of being the officer he 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 office Und8P 

color of a known and valid appointment or 

election, but falls to conform to some precedent requirement or condition, ai to take 

an oath, give a bond, or the like. 

In passing upon the question of whether a de 

facto officer may demand pay for services rendered as 

such in the C&S8 of Uhr v. Brown, 191 S,W. 379, the couPt 

said: 

"It has 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 these men 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 appolnted by the county auditor and approved by the District 

Judges may be lawfully paid out of county funds for S8rvic'.es rendered even though he has not taken the oath of 

office as required by Article 1650. 
Eon. Jack Ross, page 7 (V-743) 

R4 further b8lieV8 that the voI?ding of 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 though he has not given 

bond. 

Your fourth question as pOS8d is not on8 wlthout difficulty. we muSt first determine whether 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 Constitution provides that: 

"Ro person shall hold or 4xc)rccia8, at 

the same time, moss than on4 Civil'Offio~e 

Of 8mOlUSl8At. . . 

YariOUS 8XC8ptiOAS immaterial here 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 legally hold the two' offlcss contemporaneously since 

it would be in violation of the above quoted QOnStitUtiOAal provision. 

In the case of &uerlcan Indemnity Co. v. Red 

River Mat. Rank, 132 S.W.(2d) 47 

Appeals (vPit of error dismissed 3 

, by the Court ‘of Civil 

the county auditor was 

held to be an officer of the county. 

In 34 Tex. Jur. 323, we find the criteria for 

;z;;;ning'vhether ,an employment la a public office as 

: 

*'i)ffiC8' embraces the idea6 Of teAUP8, 

duration, emolu.meAt and duties. Among the 

criteria for determining vhethsr 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 conferred by law and not by CoAtPact; 

and the fixing of the duration or term of 
Hon. Jack Ross, page 8 (V-743) 

off ice e It is the duty pertaining to the 

office and the nature of that duty, and not 

the extent of authority which make the incumbent an officer; and one la none the less 

an officer because 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;f that a position is a public 

office when it is created by law, with 

duties cast on the incumbent which lnvolve an exercise of some portion of the 

sovereign power and in the performance 

of which the public Is concerned,'and whFch 

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 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: 

"'The most important characteristic 

which distinguishes an office from an employment or contract Is that the creation 

and conferring of an office involves a 

delegation to the individual of some of the 

sovereign functions of government, to be exercised by him for the benefit of the public; 

that some portion of the sovereignty of the 

county, either legislative, executive OP 

judicial, attaches, for the time being, to 

be exercised for the public benefit 0 . 0 

In distinguishing between an office and an 

employment, the fact that the powers in question are created and conferred by law is an 

important criterion. For, though an employment may be created by law, It Is not 

necessarily so, but is often, if not usually, the creature of contract. A public office, on the other hand, is never conferred by contract, but finds Its source and 

llmltatlons In some act or expression of 

the governmental power. 0 0 Public offi- 
Eon. Jack Ross, page 9 (V-743) 

cers are usually required by 

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 office may exist 

without it, for, as ha8 b88n said, th4 oath. 

IS a mere inoident and constitutes no part 

Of the Office. . . If a duty be a continuing one, which is' defined by rule6 prescrlbed by the government, and not by contract, 

which an Individual is appointed by government to perform, who enter4 ,on the duties 

pertaining to his station without 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 can make no diffsrdhC8 *ether there be 

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. 

"'Public office is the right, authoritf, 

and duty created and conferred by law by 

which, for a glvrn p8riod either fixed by 

law or enduring at the 

lng power, an lndlvldua P 

leasure Of the Cr8atr 

is invested with 

some portion of the sovereign functions of 

the government to be 8XOrCiS4d by 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 make him an~of?. 

ficer, and not the extent-of his 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 CrimlnaL AppeaLs in determining that a 

deputy supervisor of the 011 and gas department of the 

Railroad Commission was an officer had this to say: 

"It was also held that an assistant 

director of the Motor Transport Division 

of the Railroad Commlssion.was either an 

officer or a de facto officer. Again, W8 

think that Art. 6030, supra, providing for 

the appointment of a deputy supervisor and 

prescribing his duties, gives ample grounds 

for a legal inference that such deputy was 

an officer in contemplation of this etatute. While not a necessary adjunct, nevertheless the fact that a person receives his 

position by appointment is at least porsw' 

sive to some extent that such position is 

an office; If he receives such merely by 

employment, the inference might 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 charged with all the duties as 

well as the responsibilities of his superior, and empowered to perform the acts and 

discharge the duties of such superior, and 

to that extent becoming the superior officer himself in his superior's absence, If 

the superior be denominated an officer, tffen 

the deputy would also be such an officer, 

Applying the standards set out in the foregoing 

authorities as to whether any public employment amounts 

to a public office, w4 find that the assistant or deputy 

county auditors %re created under legislative authority, 

said assistants or deputies possess a delegation of a 

portion of the sovereign power 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 

statute provides that the assistant or deputy county audltors are authorized to discharge such duties as may be assigned to them by the county auditor and provided for by 

lav. The term "provided for by law" moans, of course, 

ipwse duties which are imposed upon the county auditor by 

. The employment is continuing in its nature as the 

statutes provide that after the list of assistants or deputies have been certified to the Commissioners' Court by 

the District Judge OP District Judges, said court shall 

appropriate out of the general fund an adequate sum to 
Hon. Jack Ross, page 11 (V-743) 

pay for the performance of such services by ,the .asslstRntS or deputies. This amount must be setup .ln the 

county budget annnally. 

The Dis,triat Judge or District Judges:glving 

consent to the auditor to appoint such asslst,ants or 

deputies shall annually have the right to withdraw such 

consent. RenC8, we believe such assistants or deputies 

are appointed for a year at least unless they be deslgnated as temporary assistants, which is not the case,,; 

here. 

Further, it will 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 auditors by law and not by contract, and further, since they are required to take the 

oath of office for faithful performance of such duties 

a8 are required by l.aw, and in view of the fOrego,ing; we 

believe the position of assistant or deputy county auditor comes within 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 question No. 5 should be 

answered in the negative. 

With reference to question No. 6, Article 3895, 

v. c. s., which deals with compensation for 4x officio 

services rendered by 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 cases where the Conmissioners' Court shall have determined 

that county officers or precinct officers 

Fn such county shall be compensated for 

their services, by the payment of an annual 

salary, neither the State of Texas nor any 

county shall be charged with 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 offices but " such Officers shall r8b8iV4 said salary 

in lieu of all~.other f88S,COmmiSSiOnS or 

: compensation which they~would ttherwise 

be authorized to retain; ., O . 

Section 61 of Article XVI 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 or more, ac- 

~cord~ing to the then lest precsding Federal 

Census, shall. from the first day of January 

and thereafter, and subsequent to the first 

Regular OP gpecial~gession of 'the Legislature after the adoption of this Rasolutlon, 

be compensated on a salary basis. 

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

Therefore, in view of the foregoing, the COWIty TreaSurer of Hidalgo County may not be allowed eny 8X 

officio compensation. For this reason the necessity of 8. 

further discussion of question No. 6 is obviatprd. 

There is no authority whereby the county auditor may 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 person may 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 compensation by the County Commlssion8rs~ Court. SsC. 

3, Art. 39128; 380, 61 Of &'t. xm, Stat8 

Constitution, 

Yours very truly, 

ATTORRFIY G~MLOFTEXAS 

BA:mWerc:mw 

.