a superiorofficeror body. II 5. It must have some permanencyand continuity,and not be only temporaryor occasional."
The place of ExecutiveDirectorsatisfiesall of these require- ments. The positionla createdexpresslyby the Legislativeenactment; the ExecutiveDirectorpossessesby delegationa portionof the sovereign l
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power of government,to be exercisedfor the benefit of the public, in that the legislaturehas vested in him the power and duty to dischargeall administrative and executivefunc- tions of the State Departmentof PublicWelfareend vests in the positionthe authorityto exerciseany right,power, or duty imposedor conferredby the act upon the State Depart- ment of Public Welfare;the powers to be exercisedand the dutiesto be discharged,are definedby the Legislatureand by its authority;the dutiesto be performedare independent and without controlof a superiorpower, other than the law, exceptas the directormay be placedby the act under the generalcontrolof the Board; the office itselfis of a per- manent and continuingnature,though the tenure of the partlc- ular incumbentmay be only duringthe pleasureof the Board. See cases cited in the annotationin 53 A.L.R., followingthe case of'Barneyv. Hawkins,cited above.
Additionalevidenceof the existenceof an office,ratherthan of a mere employment,is found in the followingfacts:
1. The act itselfrefers to the ExecutiveDirectoras an officer. This, while not conclusive,is indicativeof the legislativepurpose.
The act providesthat the ExecutiveDirectorshall be the advice and consentof two-thirdsof the membershipof the Senate.
3. The act prescribesthe qualifications to be poa- sessedby the ExecutiveDirectorin detail.
That the Directoris not requiredby the terms of the Act to give bond is of no importance. Many officersof this State are not re- quiredto give bond. Likewise,it is not necessaryto the existence of an officethat the incumbentbe given a fixed and definitetenure; an officemay exist,though the incumbenthold only duringthe pleasure of the appointingpower.
The statute,it is true, does not specificallyrequirethat the ExecutiveDirectortake the constitutional oath of office. Article 16, Section1, of the Constitution, however,imposesthe requirement, independentof any statute,that all officerstake the oath therein prescribed. This sectionwould be meaninglessif the prescribingof an oath were indispensableto the creationof an office,for by merely .
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failingto prescribethat an oath shouldbe taken, the Legislaturewould be able to defeatthe constitutionalrequirement.
Yours very truly
APPROVEDMAR 4, 1943 ATTORNEYGENEPALOFTEXAS
1.4 GeraldC. Mann ATTORNEYGRVEXALOFTEXAS By /s/ R. W. Fairchild R. W. Fairchild Assistant
APPROVED OPINION COMMlTPEE BY /s/ BWB CHAIRMAN