- R-698 

### 389 OF’FICE OF



# _ THEATTORNEY 

# GE~RAL

AUSTIN.TEXAS

PRICEDANIEL *IMRYiEYGqieRAL September 8, 1947
Hon. C. H. Cavness Opinion No. V-371 State Auditor Capitol Station Austin, Texas Re:. The legality,of a state employee's~reoeiving and uslngthe jury fee.ror serving as a.juror while, on state payroll. Dear Sir: Your request for an opinion uponthe above sub-

. ject matter is as .rouows:

., "1 shall great-ly'appreciate your opinion as to whether it is .legal; unaer our Constitution anaStatutes; r0r aS'tate employee to receive, and use the proceeds of, rees for'serv$ng as a juror in the District or CountyICourts oi'the State while he is also drawing pay on someState payroll. Tt appears there is considerable confusion onthis matter. Werind that some'departments are holding that aState employee should not accept ajury fee, others ask themto tarn any such fees they have received into the State Treasury, and still others permit themto accept and keep such fees. In all this of' course it is assumedthat the employee is given a temporary leave of absenoe without deduction in his State pay for such time as he.nhaybe'serving onjury duty.* Your question involves Sections 33ana 40 of Article XVI of the Texas Constitution, andSection 2 (14)o of the CurrentDepartmental Appropriation Bill, being S.B. 391, Chapter 400, Acts Fiftieth Legislature, R. S..1947.

Section 40of Article ¶I of the Texas Constitution. reads in part as follows:Hon. 0. H. Cavness, Page 2, V-371 - .

“No person shall hold or exerolse, at the sametime, more than one civil office of emolument, except

. . - .* Section 33of this sameArticle reads in part as follows:

“The accounting ofrioers or this State shall neither drawnor pay awarrant upon the Treasury in favor of any person, for.salary.or compensation as agent, orricer or appointee, ~who holds at the sametime any other office or position of honor, trust orprofit, under this State or the United States, except as presaribed iii this Constitution.* Section 2 (14)~ S.B. 391, Chapter 4WJAots of the Ffrtfeth Legislature reads as follows:

“Salary pyments

. Nosalary for which an aooronrlatlon Tsmadaherein shall be Paid to ayy p&son unless auoh person actually-disaharges assigned auties.R i This Department held in Opinion No. 0-6185 that the CountyTreasurer wasnot authorized to aeduot from the. regular oompensation .oi County employees the amount paid to such employees for jury servloe while serving on a petit jury. In a letter opinions-dated May20, 1938, addressed to Honorable W. Pat Camp,Assistant Criminal District Attorney, San.Antonio, Texas, andsigned byR.E. Gray, Assistant Atto~rneyGaneraL, It was held’ that aDeputy TaxAssessor-Collector was.entitled to reaelve and use his pay r0.T serviaes~‘,while serving as a grand juror.

Artic1.e 16, Se&ion 19, of the Texas Constitution, provides in part:

“The Legislature shall presoribe by-la; the qualiiiaatfons of grand and petit j~rors.~

servioe except the following persons:

.“

. . . . =2;~-dwawt1 0rri0em- 0r this State and of the United,States.” See also A’rt.616; C.C.P.. - Eon. C. H. Cavness, Page:3,, V-371

~Ithas been held.many times that officers or 'employees of.the State. or .Countyare qualified to serve as grand or petit jurors-. Edgar vs.~State, Crim. App., 127.S.W. 1053; Mingo vs. State, Crim. App.,, 133S.W. 882; Counts vs. Statej.Crim. App.; 181.S,W;723.

~-Theholding 0r civio office is growa ror exempting':e juror on hisapplication, but it is not.ground .of~challenge." 26Tex..Jur. 744. :I$ has been hela'that neither a grand-juror nor a.petit juror holds.an "office? wlthin~the meaningof the constitutional andstatutory provisions prohibiting the holding of:two offices., State vs..Graham, 79S.C. 116, 6O.S.E..431; Territory vsi Hopt, 3Utah 396, 4P. 250,255.

:,.
: In the latter case the court said:

"IniT. US.v.~Hartwell,; Wall. 393, the court say:. :tAn offiae isa publicstation or employment, conferred.by the appointments of government. The term,embraOesthe ideas .of tenure,, duration, employment,~ and.dutie~5.Y "M. Bouvier, in his dictionary, defines offi~&e:to be' 'aright to .exerciss apublic iunc- ' tionor employment, anL-to mhe .the rees~ana ~emoluments.belonging to it..* .i2
: "'The idea c&an of&e :clearly defined embraces the i,deas of:.tenure::duration, fees ear. emoluments, rights and powers, as well as that oftduty; a public employment'confirmed by appointmentor government.! Burrill, LawDiet. YIn~20Johns. ~493,Platt defines orrice to be 'an employment onbehalf of the government in anystation or public trust, notmerely transient
.,.ocoasional, or incidental.'- "An office is derined.to be 'a right to exercise a public function or employment, and to take .the fees and emoluments belonging to it.'. Streeter v. Rush, 25 Calm.98; People v. Stratton, 28 Cal. 388. "Jury duty :is In the nature of service due from the,.ci,tizen to the government, necessarily required in thenadmlnistration~ or its laws.- .

Hon. C. H. Cavness, Page 4,,V-371

Its character has but little similarity to tenure, duration, power, andthe right to exercise powers conferred by.the appointment of government, which are essential characteristics of office, 'and not mere transient, occasional, ,or incidental.' The nameof the manIs selected, and, with 199 others, is placed in a box which is denominated the jurybox, fromwhich it is drawnby chance; and, wlthout his knowledge of any previous steps, he is summonedto appear in court to perform the duty of a juror. It is true, he has a duty of a public nature to perform, and for it he Is compensated out of the public treasury; but in what other respect does his position or his duties correspond with the essential elements of office? Hehas no certain term of office. Hehas no right to, andhas no power to enforce a right to, the performance

..- of any act or service which constitutes the perfoxmance of official duty. Heis liable at anymoment to be discharged by the court from all service; andto be excused by either party from serving in the trial of any cause without consulting his wishes or interests. The oath hetakes, in its terms landscope, limits his.duty, to the facts 1 of the particular case then on trial, ana is not the oath required by the laws of this territory, or by the constitution and laws of the United States, to be taken by public officers. State v. Bradley, 48 Corm. 535. The position of a jurymanis, to a certain extent, a 'place of public .trust and emolument,' but not in the sense of these statutory provisions.* Weaccordingly-hold that ajuror does not holds a "civil office of emolument" within the meaning of Section 40, of Article XVI, of the Texas Constitution. ving as a it, under Art; XVI, Words andPhrases, Vol. 33, pages 51'and 53ae- - __ fines a upOsltion~ as rollows:

Thenext inquiry is whether a person while serjuror holds a wposition of honor, trust or profthis State,v within the meaning of Sec. 33of Texas Constitution.

:A 'position' is analogous to an *orri&ef, in that the duties that pertain to it are,.l?qmanent.and certain, but 'it differs froman~o fiae

‘in thatits duties maybe nongovernmentar'andHon. C. H. Cavness, Page 5, V-371 

### 393

not.assigned tom

itby.:any, public law of the ~state.,~ An 'employment' is differentiated.from both an offioe anda position, in that its duties, which are nongovernmental;- are neither : oertain nor permanent. %oard.of-Education of City. of Bayonne v.:,Bidgood,~Sup.~, 168A 162,163, 11N.J.~Misc. 735.,. ,. RAposition isanalogodsto an:ofrice,:in " that.the duties that.pertaln to it are and certain, ,and it.airrers from an off ce n 3!=?= that itsduties may:be~nongovernmental;ana " notassigned to itby public law.. Prederioks .v.'Boardof Health,of Townof rPestHoboken;

.. 82A. 528; 529,,.82 NJL. 200.". .'~
the In Johnston.v. Chambers, (Ga) 98SiE. 263 (1919) police commissionerof~the City of Atlanta by then nameof Chamberswas amemberof a local draft board at the time-of his electionand induction into office. The charter,of the City of Atlanta provided:'

"It shall be,unlawful,for any person holding,an orrioe or positian-of trust, ;,emolument, or-regular employment nnder.anoointmentbv then 1 .:President..of the-United State;‘;'..,.

. to-oc- .'

oupy or hold any other offlce'or.position of trust, honor, or emoltunentor regular employment in or under the city government

. . mn Suit was for mandamusto have Chambersdeclared ineligible for the office of police commissioner. Itwas hela~ that membership on the local draftboard wasnot a "POsition of trust" wi,thin the meaning of the language of the Atlanta.Charter above quoted. The.Supreme Court of Georgia said:

"The.dutieswhioh these boards were called. 'upon.t.0 perform were of the.most .exalted character, but-.they were as transitory and ephemeral as they were exalted; andit was the duty of any citizen called to membership upon one of these boards whether aprivate citizen or the holder of any orrice, to lay aside all other duties for the hour andrespond to the call. The court below properly denied the applicationin. In Reading v. ,?daxwell, 52P. (2d) 1155, the Supreme,Court of:Arizona.~held that a person holding appointmentas clerk in the Phoenix Water Department did not thereby hold a'"position" within the meaning of the term .’-

3% Hon. C. H. Cavness, Page 6, V-371

an.,ordlnance classifying employees under Civas used in 11Service.In Opinion No. O-2798, this office held that the Criminal District Attorney for Ellis County, Texas was entitled 'tobe paid by the State for professional services rendered the State in a civil case in which the State was sued as a defendant. TheCriminal District Attorney cameinto the civil case at the request of the Attorney General but hewas not anAssistant Attorney General. The case involved the liability of the State for damages in the construction of a highway andwas not one the Criminal Districts Attorney was called uponto defend. As an attorney in the case the Criminal District Attorney was "an officer of the court" but the opinion held that Section 33, Article XVIof the Constitution did not prevent the accounting officers Or this State from,paying the Criminal District Attorney for services rendered the State in the civil suit.

In Opinion No. O-4313 this office held that a memberof the State B~oardof Education could also serve. as amember.of anAlien EnemyHearing Board. In holding ,that membership.on anAlien EnemyHearing Board 'wasnot a vpositionv within the meaning of that term as used in .Se&ion 33; o,fArticle XVI, Texas Constitution, the then Attorney General said:

"The term 'position' implies, amongothers, stability, compensation, duration. Theabsence, or relative absence, of these essentials, appertainlngto membership upon anAlien EnemyHearing Boald,...is manifest from our review of its origin; status and oharacter. Pa*icularly controlling are these facts: membership uponthe Board is entirely temporary; its membersare engaged in the doing of an emergency service for the Government in time of war; the services performed are essentially desultory, sporadic, oocaslonal; no oompensatioa is paid and'there is anabsence of permanency and continuity in the Board ltself.n Thesame observations are applicable to jury service. It isa duty of citizenship ratherthan a vposition" freely chosen. Service as a juror totally lacks the elements of permanency and continuity which are essential.characteristics or an norrice or positionn as those terms are used in Section 33, of Artiole 16, Texas.

.Hon. C. H. Cavness, Page 7, V-371

Constitution. We accordingly .hold that it is legal for a State employee to receive anduse the fees received for doing jury service.

Whether aStates employee can be paid his salary for time spent serving as ajuror is a ract question which must be determined primarily by the Headof the Department in which such employee works. Your question ,assumedthat *the employee is given a temporary leave of absence without deduction in his State payfor suchtime as hemay~beserving on jury duty". Weaccordingly assumethat the Headof the Department in which such employee works found such person hadactually discharged his assigned duties. Otherwise, his leave of absence should be without pay. SUb%dARY

AState employee mayreceive and use fees received by himfor jury service without any deductions in his State pay, if such person also discharges the duties assigned to himby the Head of the Department finwhich heworks. If not, leave of absence should be granted without pay during such jury service. Sec. 33and40, hart XVI, Texas Constitution; Sec. 2114)~ Ch.,400 S. B. 391, Acts 50th Legislature, 1947. Yours very truly AlTOFNF8YGEWERAL

OFTEXAS
Byyy*FganDickson First Assistant

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