HonorableMarvin Leonard,Chairman State Board of PublicVelfere Austin,Texas i?
Dear Mr. Leonard: OpinionNo. 0-5085 Fie: Characterof positionof executivedirectorof De- partmentof Public Welfare, as public office.
This will acknowledgereceiptof your letter requestingan opinionof this departmentupon the questionwhetherthe ExecutiveDi- rector of the State Departmentof Public Welfare holds an office,rath- er than an employment,under the State, so as to come within the provi- sions of Article 16, Section30, of the Texas Constitution.
Article 16, Section'30,of the Constitutionprovidesthat:
"The durationof all officesnot fixed by this Consti- tution 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 membershipof the Senate,an ExecutiveDirectorof the Departmentof Pub- lic Welfare,who shall be the executiveand administrative officerof the State Departmentand shall dischargeall ad- ministrativeand executivefunctionsof the State Department. Such person so selectedand appointedshallbe not less than thirty-five(35) years of age at the date of his appointment, and shall have been a residentcitizenof the State of Texas for at least ten (10) years precedingthe date of his appoint- ment, and shall not have been an occupantof any elective State officeat the time of his appointment,nor have occu- pied any electiveState office duringthe six (6) months next precedingthe date of his said appointment. He shall be a person of demonstratedexecutiveabilityand extensiveex- periencein publicwelfareadministration, or shall have had experienceas an executiveor administrator, and shall serve at the pleasureof the State Board. Provided,however,that the presentExecutiveDirectorwho has previouslybeen ap- HonorableMarvin Leonard,Page 2 (0-5085)
pointedby the State Board and confirmedby the Senate shall continueto hold office for euch period of time as may be de- terminedby the State Board.
"(2) The Board shall be responeiblefor the adoptionof all policies,rules, and regulationsfor the governmentof the State Departmentof Public Welfare.
"(3) The Board, its agents,representatives, and employ- ees shall constitutethe State Departmentof Public Welfare and whenever,by any of the provisionsof this Act, or of any other Act, any right,power, or duty so impoeedor conferred shall be possessedand exercisedby the ExecutiveDirectorun- less any such right,power, or duty is specificallydelegated to the duly appointedagents or employeesof such department, or any of them, by this Act or by an appropriaterule, regula- tion, or order of the State Board."
In our opinion,the positionof the ExecutiveDirectorthus providedis clearlya "publicoffice".
Elementswhich distinguisha public office from a mere public employmentare stated in the case of State of Montana,ex rel Julius Barney Y. R. B. Bawkins,Secretaryof State, et al, 257 Pac. 411, 53 A.L.R.,page 583:
"1. It must be createdby the Conetitutionor by the Legislature,or createdby a municipalityor other body throughauthorityconferredby the Legislature.
"2. It must posaesra delegationof a portionof the sovereignpower of government,to be exerciredfor the bene- fit of the public.
"3. The powers conferredand the dutiesto be dir- chargedmust be defined,directlyor lnpliedly,by the Leg; islatureor throughLegislativeauthority.
"4. The dutiesmust be performedIndependently and without controlof a superiorpower, other than the law, unless they be those of an inferioror subordinateoffice, createdor authorizedby the Legislature,and by it placed ,, under the generalcontrolof