Honorable CullenB. Vance

CountyAttorney 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 opinionrequest of June 27, 1944, lows: has in the "TheDeputy County Treasurer here,who been in charge of the Treasurer's Office, absence of the regular County Treasurer,who is inMilitary service, has recently been appointed Rent Control Inspector for the Office of Price Administration for Jackson and Calhoun Counties. reads as fol-

"Itwas suggestedby the Commissioners' Court that he continue to perform the duties ofDeputy County Treasurer along with the duties of his position as Rent Control Inspector,and so far as I know, there is no objectionby anyone here to his continuing in both capacities.
"AsDeputy County Treasurer he receives a salary of $100.00per month, ipaid County,but deducted from th4 directly by the Treasurer's salary who receives $125.00per month. His salaryas Rent Control Inspectorwill be paid by the FederalGovernment, and will approximate $200.00per month. "TheOffice of PriceAdministration has no objection to his continuing inboth capacities.
"Iwould like an opinion fromyour department as to whether there is any legalprohibition that would prevent him from continuing to act as Deputy County Treasurerwhile servingas Rent Control Inspector."Hon. CullenB. Vance, page 2 o-6088

With certain,exceptionsnot here material, Section 40 of ArticleXVI of the Texas Constituionprovides:

"Noperson shall hold or exercise, at the same time, mvre than one civil office of emolument
. . . .' Similarly, Section 12 of the sameArticle provides:
"Nomember 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, shallbe 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 previouslyheld in OpinionNo. 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 underwhich deputy county treasurers are appointed,we feel that a deputy county treasurer is also a public officer, and that he holds a "civiloffice of emolument" and an "office of profit or trust under this State.”

From the local Office of Price Administrationwe have obtained the following informationrelative to O.P.A.Rent Control Inspectors:

Such Inspectorsare appointed under the provi~sionsof the Emergency Price ControlAct and the executive and administrative orders issued thereunder. The Inspectors form a part of the general scheme of inflation controlby the federal government, and function in this respect by seeing that rent ceilingsare obeyed,by valuing property so that proper ceilingsmay be established or that proper changesmay be made in existing ceilings, and by enforcing the other provisions of the rent control regulations. Rent Control Inspectorsare req,uiredto 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 Commissioners1Court of **Limestone** CountyHon. CullenB. Vance, page 3 O-6088

v. Garrett, 236 S.W. 970, our Commission ofAppeals defined a "public officer" in the following terms:

"Publicofficers 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 indispensablecriterion, and the officemay existwithout 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 personwho performs the duties from an officer."
In the case of Kimbrough v. Barnett, 93 Tex. 310, 55 S.W. 122, our Supreme Court said:

"Publicoffice 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 investedwith someportion of the sovereign functions of the government to be exercisedby 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 "civiloffice of emolument and an "officeof 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 treasurermay not also serve as an O.P.A.Rent Control Inspector.

In a situation such as the present inwhich neither the Commissioners'Court nor the Office of PriceAdministration has any objection to the holding of the two offices, the Constitutionalprohibitionsdoubtless seem unduly severe. However, as was said in our OpinionNo. O-490:

"Therestraint against a person exercising or holdingmore than one civil office of emolument might appear to be a manifestation of a superabundance ofcautionon the part of the framersHon. CullenB. Vance, page 4 o-6088

of the constitution,where the officesare not of major importance,or of high financialremuneration, 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 constitutionalmandate 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'CommitteeBy s/BWB Chairman