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 Public Welfare, 

as public office. 

This will acknowledge receipt of your letter requesting an 

opinion of this department upon the question whether the Executive Director of the State Department of Public Welfare holds an office, rather than an employment, under the State, so as to come within the provisions of Article 16, Section 30, of the Texas Constitution. 

Article 16, Section'30, of the Constitution provides that: 

"The duration of all offices not fixed by this Constitution shall never exceed two years. . . .l( 

Section 3 of House Bill 611, Acts of the 47th Legislature, 

Regular Session, provides: 

"Sec. 3. (1) The Board shall select and appoint, with 

the advice and consent of two thirds of the membership of 

the Senate, an Executive Director of the Department of Public Welfare, who shall be the executive and administrative 

officer of the State Department and shall discharge all administrative and executive functions of the State Department. 

Such person so selected and appointed shall be 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) years preceding the date of his appointment, and shall not have been an occupant of any elective 

State office at the time of his appointment, nor have occupied any elective State office during the six (6) months next 

preceding the date of his said appointment. He shall be a 

person of demonstrated executive ability and extensive experience in public welfare administration, or shall have had 

experience as an executive or administrator, and shall serve 

at the pleasure of the State Board. Provided, however, that 

the present Executive 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 shall be 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 Public Welfare 

and whenever, by any of the provisions of this Act, or of any 

other Act, 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 clearly a "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 other body 

through authority conferred by the Legislature. 

"2. It must posaesr a delegation of a portion of the 

sovereign power of government, to be exercired for the benefit of the public. 

“3. The powers conferred and the duties to be dircharged must be defined, directly or lnpliedly, by the Leg; 

islature or through Legislative authority. 

"4. The duties must be performed Independently and 

without control of a superior power, other than the law, 

unless they be those of an inferior or subordinate office, 

created or authorized by the Legislature, and by it placed ,, 

under the general control of a superior officer or body. 

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

not be only temporary or occasional." 

The place of Executive Director satisfies all of these requirements. The position la created expressly by the Legislative enactment; 

the Executive Director possesses by delegation a portion of the sovereign 
l 

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 Public Welfare end vests in 

the position the authority to exercise any right, power, or 

duty imposed or conferred by the act upon the State Department 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 control of a superior power, other than the law, 

except as the director may be placed by the act under the 

general control of the Board; the office itself is of a permanent and continuing nature, though the tenure of the partlcular incumbent may be only during the 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, rather than 

of a mere employment, is found in the following facts: 

1. The act itself refers to the Executive Director as 

an officer. This, while not conclusive, is indicative of the 

legislative purpose. 

The act provides that the Executive Director shall 

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 Director in detail. 

That the Director is not required by the terms of the Act to 

give bond is of no importance. Many officers of this State are not required to give bond. Likewise, it is not necessary to the existence 

of an office that the incumbent be given a fixed and definite tenure; 

an office may exist, though the incumbent hold only during the pleasure 

of the appointing power. 

The statute, it is true, does not specifically require that 

the Executive Director take the constitutional oath of office. Article 

16, Section 1, 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) 

failing to prescribe that an oath should be taken, the Legislature would 

be able to defeat the constitutional requirement. 

APPROVED MAR 4, 1943 

1.4 Gerald C. Mann 

ATTORNEY GRVEXALOFTEXAS 

Yours very truly 

ATTORNEY GENEPALOFTEXAS 

By /s/ R. W. Fairchild 

R. W. Fairchild 

Assistant 

RWF:nw:lm 

APPROVED 

OPINION 

COMMlTPEE 

BY /s/ BWB 

CHAIRMAN