Honorable Marvin Leonard,

Chairman State Board of Public Velfere Austin,Texas i?
Dear Mr. Leonard: Opinion No. 0-5085 Fie: Character

of position

of executive

director

of Department

of PublicWelfare, as public office. This will acknowledge receiptof your letter requesting an opinionof this department upon the question

whetherthe ExecutiveDirector of the State Department of PublicWelfareholds an office,rather than an employment, under the State, so as to come within the provisions of Article 16, Section30, of the Texas Constitution.

Article 16, Section'30, of the Constitution provides

that: "The duration

of all offices

not fixedby this Constitution shall never exceedtwo years. . . .l( Section3 of House Bill 611, Acts of the 47th Legislature, Regular Session,

provides: "Sec. 3. (1) The Board shall selectand appoint, with the advice and consentof two thirds of the membership of the Senate,an Executive Director

of the Department

of Public Welfare,

who shallbe the executive and administrative officerof the State Department and shall discharge all administrative

and executive

functions

of the State Department. Such person so selected and appointed

shallbe not less than thirty-five

(35) years of age at the date of his appointment, and shall have been a resident citizen

of the State of Texas for at least ten (10) yearspreceding the date of his appointment, and shallnot have been an occupant of any elective State officeat the time of his appointment, nor have occupied any elective

State office duringthe six (6) months next preceding

the date of his said appointment. He shallbe a person of demonstrated executive

abilityand extensiveexperience in publicwelfareadministration, or shall have had experience

as an executive

or administrator,

and shall serve at the pleasure

of the State Board. Provided, however,

that the presentExecutive Director

who has previously been ap-Honorable Marvin Leonard,

Page 2 (0-5085)

pointed

by the State Board and confirmed by the Senate shall continue

to hold office for euch period of time as may be determined

by the State Board. "(2) The Board shallbe responeible for the adoption

of all policies,

rules, and regulations for the government

of the State Department

of Public Welfare. "(3) The Board, its agents,representatives, and employees shall constitute the State Department of PublicWelfare and whenever,

by any of the provisions of this Act, or of any otherAct, any right,power, or duty so impoeed or conferred shall be possessed

and exercised

by the Executive

Director

unless any such right,power, or duty is specifically delegated to the duly appointed agents or employees of such department, or any of them, by this Act or by an appropriate rule, regulation, or order of the State Board."
In our opinion,

the position

of the Executive

Director

thus provided is clearlya "public office". Elements

which distinguish

a public office from a mere public employment

are stated in the case of State of Montana,ex rel Julius Barney Y. R. B. Bawkins,Secretary of State, et al, 257 Pac. 411, 53 A.L.R.,page 583:

"1. It must be created by the Conetitution or by the Legislature,

or created

by a municipality

or otherbody throughauthority

conferred

by the Legislature. "2. It must posaesra delegation of a portionof the sovereign

power of government, to be exercired

for the benefit of the public. “3. The powers conferred and the dutiesto be dircharged

must be defined,

directly

or lnpliedly,

by the Leg; islature

or throughLegislative authority. "4. The dutiesmust be performed Independently

and without controlof a superior power, other than the law, unless they be those of an inferior or subordinate

office, createdor authorized by the Legislature, and by it placed ,, under the general control of a superior

officeror body. II 5. It must have some permanency and continuity,

and not be only temporary or occasional." The place of Executive Directorsatisfies all of these requirements. The positionla createdexpressly by the Legislative enactment; the Executive

Director

possesses

by delegation

a portionof the sovereignl

Honorable

Marvin Leonard,

Page 3 (0-5085)

power of government, to be exercised

for the benefit of the public, in that the legislature has vested in him the power and duty to discharge all administrative

and executive

functions of the State Department of PublicWelfare end vests in the position

the authority

to exercise

any right,power, or duty imposedor conferred by the act upon the StateDepartment of Public Welfare; the powers to be exercised and the duties to be discharged, are defined

by the Legislature and by its authority;

the duties to be performed are independent and without controlof a superior power, other than the law, exceptas the director may be placedby the act under the generalcontrolof the Board; the office itself is of a permanent and continuing nature,though the tenure of the partlcular incumbent

may be only duringthe pleasure of the Board. See cases cited in the annotation in 53 A.L.R., following the case of'Barney

v. Hawkins,cited above. Additional

evidence

of the existence

of an office,ratherthan of a mere employment, is found in the following facts: 1. The act itselfrefers to the Executive Director

as an officer. This, while not conclusive, is indicative

of the legislative

purpose. The act provides

that the Executive

Directorshall be apE:inted

with the advice and consent of two-thirds

of the membership

of the Senate. 3. The act prescribes the qualifications

to be poasessed by the Executive

Directorin detail. That the Directoris not required by the terms of the Act to give bond is of no importance. Many officers of this State are not requiredto give bond. Likewise, it is not necessary to the existence of an officethat the incumbent be given a fixed and definite tenure; an officemay exist,though the incumbent hold only during the pleasure of the appointing

power. The statute,it is true, does not specifically requirethat the Executive

Director

take the constitutional oath of office. Article 16, Section1, of the Constitution, however,imposes

the requirement, independent

of any statute,

that all officers

take the oath therein prescribed. This section would be meaningless if the prescribing of an oath were indispensable to the creation

of an office,for by merely.

Honorable

Marvin Leonard,

Page 4 (0-5085)

failingto prescribe that an oath should be taken, the Legislature would be able to defeat the constitutional requirement.

APPROVED

MAR 4, 1943 1.4 GeraldC. Mann ATTORNEYGRVEXALOFTEXAS Yours very truly ATTORNEY

GENEPALOFTEXAS

By /s/ R. W. Fairchild

R. W. Fairchild Assistant RWF:nw:lm APPROVED OPINION COMMlTPEE BY /s/ BWB CHAIRMAN