- R-698 

389 

OF’FICE OF 

_ THE ATTORNEY GE~RAL 

AUSTIN. TEXAS 

PRICEDANIEL 

*IMRYiEY GqieRAL 

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 upon the above sub- 

. ject matter is as .rouows: 

., "1 shall great-ly'appreciate your 

opinion as to whether it is .legal; unaer our Constitution ana Statutes; r0r 

a S'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 some State payroll. 

Tt appears there is considerable 

confusion on this matter. We rind that 

some'departments are holding that a State 

employee should not accept a jury fee, 

others ask them to tarn any such fees they 

have received into the State Treasury, and 

still others permit them to accept and 

keep such fees. In all this of' course 

it is assumed that the employee is given 

a temporary leave of absenoe without deduction in his State pay for such time as 

he.nhay be'serving on jury duty.* 

Your question involves Sections 33 ana 40 of Article XVI of the Texas Constitution, and Section 2 (14)o 

of the CurrentDepartmental Appropriation Bill, being S.B. 

391, Chapter 400, Acts Fiftieth Legislature, R. S..1947. 

Section 40 of 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 same time, more than one civil office of 

emolument, except . . - .* 

Section 33 of this same Article reads in part 

as follows: 

“The accounting ofrioers or this State 

shall neither draw nor pay a warrant upon the 

Treasury in favor of any person, for.salary.or 

compensation as agent, orricer or appointee, 

~who holds at the same time 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 4WJ Aots of 

the Ffrtfeth Legislature reads as follows: 

“Salary p yments . No salary for which an 

aooronrlatlon Ts mada herein 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 County Treasurer was not 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 May 20, 1938, 

addressed to Honorable W. Pat Camp, Assistant Criminal 

District Attorney, San. Antonio, Texas, and signed by R.E. 

Gray, Assistant Atto~rney GaneraL, It was held’ that a Deputy Tax Assessor-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 .County are qualified to serve 

as grand or petit jurors-. Edgar vs.~State, Crim. App., 

127.S.W. 1053; Mingo vs. State, Crim. App.,, 133 S.W. 882; 

Counts vs. Statej.Crim. App.; 181.S,W;723. 

~-The holding 0r civio office is growa ror 

exempting':e juror on hisapplication, but it is 

not.ground .of~challenge." 26 Tex..Jur. 744. 

:I$ has been hela'that neither a grand-juror nor 

a .petit juror holds.an "office? wlthin~the meaning of the 

constitutional and statutory provisions prohibiting the 

holding of:two offices., State vs..Graham, 79 S.C. 116, 

6O.S.E..431; Territory vsi Hopt, 3 Utah 396, 4 P. 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 a public iunc- ' 

tionor employment, anL-to mhe .the rees~ana 

~emoluments .belonging to it..* .i 2 

: "'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 

of tduty; a public employment'confirmed by appointmentor government.! Burrill, Law Diet. 

YIn~20 Johns. ~493, Platt defines orrice to 

be 'an employment on behalf of the government in 

any station 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 then admlnistration~ or its laws. 
- . 

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

Its character has but little similarity to tenure, 

duration, power, and the right to exercise powers 

conferred by.the appointment of government, which 

are essential characteristics of office, 'and not 

mere transient, occasional, ,or incidental.' The 

name of the man Is selected, and, with 199 others, 

is placed in a box which is denominated the jurybox, from which it is drawn by chance; and, wlthout his knowledge of any previous steps, he is summoned to 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? He has no certain term of office. He has no right to, and has 

no power to enforce a right to, the performance 

..- of any act or service which constitutes the perfoxmance of official duty. He is liable at any moment to be discharged by the court from all service; and to be excused by either party from serving in the trial of any cause without consulting 

his wishes or interests. The oath he takes, in 

its terms land scope, 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 juryman is, to a certain extent, a 'place of public 

.trust and emolument,' but not in the sense of 

these statutory provisions.* 

We accordingly-hold that a juror 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 and Phrases, Vol. 33, pages 51'and 53 ae- 

- __ fines a upOsltion~ as rollows: 

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

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 may be nongovernmentar'and 
Hon. 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 and a position, in that its 

duties, which are nongovernmental;- are neither 

: oertain nor permanent. %oard.of-Education of 

City. of Bayonne v.:,Bidgood,~Sup.~, 168 A 162,163, 

11 N.J.~Misc. 735.,. ,. 

RA position isanalogodsto an:ofrice,:in " 

that.the duties that.pertaln to it are 

and certain, ,and it.airrers from an off 3!=?= ce n 

that itsduties may:be~nongovernmental;ana " 

notassigned to itby public law.. Prederioks 

.v.'Boardof Health,of Town of rPest Hoboken; . . 

82 A. 528; 529,,.82 NJL. 200.". .'~ 

the 

In Johnston.v. Chambers, (Ga) 98 SiE. 263 (1919) 

police commissionerof~the City of Atlanta by then 

name of Chambers was a member of 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 emoltunent or regular employment in or under the city government . . mn 

Suit was for mandamus to have Chambers declared ineligible for the office of police commissioner. Itwas hela~ 

that membership on the local draftboard was not 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; and it was the duty of any citizen 

called to membership upon one of these boards whether a private citizen or the holder of any orrice, 

to lay aside all other duties for the hour and respond to the call. The court below properly denied 

the applicationin. 

In Reading v. ,?daxwell, 52 P. (2d) 1155, the Supreme,Court of: Arizona.~held that a person holding appointment as 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 

as used in an.,ordlnance classifying employees under Civ11 Service. 

In Opinion No. O-2798, this office held that 

the Criminal District Attorney for Ellis County, Texas 

was entitled 'to be paid by the State for professional 

services rendered the State in a civil case in which the 

State was sued as a defendant. The Criminal District 

Attorney came into the civil case at the request of the 

Attorney General but he was not an Assistant Attorney 

General. The case involved the liability of the State 

for damages in the construction of a highway and was 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 XVI of 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 

member of the State B~oard of Education could also serve. 

as a member.of an Alien Enemy Hearing Board. In holding 

,that membership.on an Alien Enemy Hearing Board 'was not 

a vpositionv within the meaning of that term as used in 

.Se&ion 33; o,f Article XVI, Texas Constitution, the then 

Attorney General said: 

"The term 'position' implies, among others, 

stability, compensation, duration. The absence, 

or relative absence, of these essentials, appertainlngto membership upon an Alien Enemy Hearing 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 members are 

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 

an absence of permanency and continuity in the 

Board ltself.n 

The same 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 and use the fees received for doing jury service. 

Whether a States employee can be paid his salary for time spent serving as a juror is a ract question 

which must be determined primarily by the Head of the 

Department in which such employee works. Your question 

,assumed that *the employee is given a temporary leave of 

absence without deduction in his State pay for such time 

as he may~be serving on jury duty". We accordingly assume that the Head of the Department in which such employee works found such person had actually discharged 

his assigned duties. Otherwise, his leave of absence 

should be without pay. 

SUb%dARY 

A State employee may receive and use fees 

received by him for jury service without any 

deductions in his State pay, if such person also discharges the duties assigned to him by the 

Head of the Department fin which he works. If 

not, leave of absence should be granted without 

pay during such jury service. Sec. 33 and 40, 

hart XVI, Texas Constitution; Sec. 2114)~ Ch. ,400 

S. B. 391, Acts 50th Legislature, 1947. 

Yours very truly 

AlTOFNF8YGEWERAL OFTEXAS 

Byyy* 

F gan Dickson 

First Assistant 

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