Honorable Cullen B. Vance 

County Attorney 

Jackson County 

Edna, Texas 

Dear Sir: Opinion No. O-6088 

Re: Whether a deputy county treasurer 

may also serve as a rent control 

insaector for the Office of Price 

Administration... 

Your opinion request of June 27, 1944, 

lows: 

has 

in the 

"The Deputy County Treasurer here, who 

been in charge of the Treasurer's Office, 

absence of the regular County Treasurer, who is 

in Military service, has recently been appointed 

Rent Control Inspector for the Office of Price 

Administration for Jackson and Calhoun Counties. 

reads as fol- 

"It was suggested by the Commissioners' Court 

that he continue to perform the duties of Deputy 

County Treasurer along with the duties of his position as Rent Control Inspector, and so far as I know, 

there is no objection by anyone here to his continuing in both capacities. 

"As Deputy County Treasurer he receives a 

salary of $100.00 per month, ipaid 

County, but deducted from th 

4 

directly by the 

Treasurer's salary 

who receives $125.00 per month. His salary as 

Rent Control Inspector will be paid by the Federal Government, and will approximate $200.00 per 

month. 

"The Office of Price Administration has no 

objection to his continuing in both capacities. 

"I would like an opinion from your department as to whether there is any legal prohibition 

that would prevent him from continuing to act as 

Deputy County Treasurer while serving as Rent 

Control Inspector." 
Hon. Cullen B. Vance, page 2 o-6088 

With certain,exceptions not here material, Section 40 

of Article XVI of the Texas Constituion provides: 

"No person shall hold or exercise, at the 

same time, mvre than one civil office of emolument . . . .' 

Similarly, Section 12 of the same Article provides: 

"No member of Congress, nor person holding 

or exercising any office of profit or trust, 

under the United States, or either of them, or 

under any foreign pover, shall be eligible as a 

member of the Legislature, or hold or exercise 

any office of profit or trust under this State." 

It is settled that deputy sheriffs and deputy county 

clerks are public officers of this State. Donges v. Beall, et 

al., 41 S.W. (2d) 531; State v. Brooks, 42 Tex. 62; Townes 

v. Harris, 13 Tex. 507; Murray v. State, 67 S.W. (2d) 274. . 

This office has previously held in Opinion No. O-4968 that a 

deputy constable likewise is a public officer of the State. 

By a parity of reasoning and after consideration of Article 

3902, V.A.C.S., the Article under which deputy county treasurers are appointed, we feel that a deputy county treasurer is 

also a public officer, and that he holds a "civil office of 

emolument" and an "office of profit or trust under this State.” 

From the local Office of Price Administration we have 

obtained the following information relative to O.P.A. Rent 

Control Inspectors: 

Such Inspectors are appointed under the provi~sions of the Emergency Price Control Act and the 

executive and administrative orders issued thereunder. The Inspectors form a part of the general 

scheme of inflation control by the federal government, and function in this respect by seeing that 

rent ceilings are obeyed, by valuing property so 

that proper ceilings may be established or that 

proper changes may be made in existing ceilings, 

and by enforcing the other provisions of the rent 

control regulations. Rent Control Inspectors are 

req,uired to take an oath before entering upon the 

performance of their duties. 

This Opinion is expressly predicated upon the assumption that the foregoing information is correct. 

In the case of Commissioners1 Court of Limestone County 
Hon. Cullen B. Vance, page 3 O-6088 

v. Garrett, 236 S.W. 970, our Commission of Appeals defined 

a "public officer" in the following terms: 

"Public officers are usually required by law 

to take the oath of office, and this fact goes far 

in determining the character of the duty. Sut the 

taking of the oath is not an indispensable criterion, 

and the office may exist without it, for, es has 

been said, the oath is a mere incident, and constltutes no part of the office . . . If a duty be a 

continuing one, which is defined by rules prescribed 

by the government, and not by contract, which an individual is appointed by the government to perform, 

who enters on the duties pertaining to his station 

without any contract defining them, if those duties 

continue though the person be changed, it seems very 

difficult to distinguish such a charge or employment 

from an office or the person who performs the duties 

from an officer." 

In the case of Kimbrough v. Barnett, 93 Tex. 310, 55 

S.W. 122, our Supreme Court said: 

"Public office is the right, authority, and 

duty created and conferred by law by which, for 

a given period either fixed by law or enduring at 

the pleasure of the creating power, an individual 

is invested with some portion of the sovereign 

functions of the government to be exercised by 

him for the benefit of the public." 

We feel that the position of 0. P. A. Rent Control Inspector falls within these definitions?, and that such Inspector holds a "civil office of emolument and an "office of profit or trust under the United States" within the meaning of 

the above quoted provisions of our Constitution. Consequently, 

you are respectfully advised that under these provisions a 

deputy county treasurer may not also serve as an O.P.A. Rent 

Control Inspector. 

In a situation such as the present in which neither the 

Commissioners' Court nor the Office of Price Administration 

has any objection to the holding of the two offices, the Constitutional prohibitions doubtless seem unduly severe. However, 

as was said in our Opinion No. O-490: 

"The restraint against a person exercising 

or holding more than one civil office of emolument 

might appear to be a manifestation of a superabundance of caution on the part of the framers 
Hon. Cullen B. Vance, page 4 o-6088 

of the constitution, where the offices are not of 

major importance, or of high financial remuneration, 

as is the present case. On the other hand, said 

prohibition can amount to a protection of fundamental 

rights and liberties, and a bulwark of democratic institutions and principles. Consequently, regardless 

of the personalities, offices and compensation involved, the constitutional mandate must be strictly 

obeyed." 

Trusting that the foregoing fully answers your inquiry, 

we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/R. Dean Woorhead 

R. Dean Moorhead 

Assistant 

RDM:fo:wc 

APPROVED JULY 13, 1944 

s/Gee. P. Blackburn 

(Acting) ATTORNEY GENERAL OF TEXAS 

Approved Opinion'Committee By s/BWB Chairman