                                   OVBRFNLED BY O-7323 insofar as
                                   there is conflict.


Honorable Joe C. Oladney
Criminal District Attorney
Henderson, Texas
Dear Sir:                     Opinion NO. O-4020
                              Re: 'Whetheror not a superintendent
                                   of an independentschool dia-
                                   trlct is an "officer"under the
                                   terms of Article 159, P.C.; and
                                   other related questions.
This Is in reply to your request for our opinion as to what crime,
If any, certain facts outlined in your letter constitute.
The facts you give are briefly a8 follows: A superintendentwas
employed by the school board of an independentschool district.
This district had one negro school, which had negro teachers. The
superintendentcollected money from the negro teachers, as follows:
(a) One colored teacher paid the superintendent$15.00 per month.
When the first pay day came the superintendenthanded said teacher
her check, and the superintendenttold her she must pay,him $15.00
each month which amount he said was his "travelingexpenses". We
assume from,your letter that the teacher believed said statement,
but that It was false, and that the teacher accordinglypaid the
$15.00 to the superintendenteach month. We further understand
that the money was not "travelingexpenses" and that itwas appro-
priated by the superintendentto his own use.
(b(bthAnothercolored teacher paid the superintendent $20.00 per
        The superintendenttold her that she would have to pay him
that amount each month to reimburse him because "he had'spent a
lot of money around the colored school". We assume from your
letter that she believed him and paid said sum each month, but
that the statement that "he had spent a lot of money around the
colored school" was false,
(c) Another colored teacher paid the superintendent$17.50 per
month during the school year. The teacher's salary check each
month was $92.50 and the superintendent told her that all of
her salary over $75.00 should be paid back to him, and that that
                                                                     .

Honorable Joe C. Qladney, Page 2                   o-4020


part of her salary was being used 'to help get the school standard-
ized". We understand that she relied on said statement and paid
the superintendentthat amount each month. We also understand that
said statement in regard to said money being used to get the school
standardizedwas false.
It is our understandingthat in each case the money collected
from the teachers was appropriatedby the superintendentto his
own use, and that in the Instance of each false statement made by
him he knew it was false when he made It.
You ask two questions,as follows:
1. Is the superintendentof an independentschool district an
officer within the meaning of Article 159 of the Penal Code?
2. What offense, If any, is the superintendentin this case guilty
of commlttlng?
We will proceed to answer your first question, which involves
Article 159, P.C. Said Article reads as follows:
     "Any legislative,executive or judicial officer who
    shall accept a bribe or consent to accept a bribe
    sunderan agreement or with an understandingthat his
    act, vote, opinion or judgment shall be done or given
    in any particular manner or upon a particular side of
    any question, cause or proceeding which is or may
    thereafterby law be brought before him, or that he
    shall make any particular nomination, appointment,or
    do any other act or omit to do any act in violation
    of hisduty as an officer, shall be confined in the
    penitentiarynot less than two nor more than ten years."
The term "legislative,executive or judicial officer", in said
article, is defined In the next article, to-wit, Article 160,Penal
Code, as follows:
"Under the name of executive, legislativeand judicial
    officers are Included the governor, lieutenant-governor,
     comptroller,secretary of State, state treasurer, com-
    missioner of the general land office, commissionerof
     agriculture,commissionerof Insurance, superintendent
     of public Instruction,members of the legislature,
     aldermen of all incorporatedcities and towns, judges
     of the supreme, district and county courts and of the
     courts of appeals, attorney general, district and
     county attorneys, justices of the peace, mayors and
     judges of such city courts as may be organized by law,
     county commissioners,school truszees, and all other
     city, county and State officials.
.   -

        Honorable Joe C. Gladney, Page 3     O-4020


        These two articles were construed in the very recent case of
        Sigham v. State, (Tex.Ct.Cr.App.) 148 S. ?$.2nd 835, in which
        the court held that a Deputy Supervisor of the Oil & Gas Depart-
        ment of the Railroad Commission was an officer within the mean-
        ing of this statute. However, it was pointed out that this par-
                                                           Article 6031,
        ticular position was created by a statute, to--bait,
        R.C.S., and that persons holding said position were referred to
        as "officers" in another statute, to-wit Article 1112b, R.C.S.
        In discussing the matter further, the court said:
             We early held in the case of State v. Brooks, 42 Tex. 62,
             th:;ta deouty sheriff was an officer within the contempla-
             tion of the law, and it was again so held in the case of
             Reed v. State, Tex. Cr. App., 149 S.;I.2d 119, decided
             Fe~bruary5, 1941, not yet reported (in state report). It
             was also held that en assistant director of the ?jIotor
             Transport Division of the Railroad Commission was either an
             officer or a de facto officer. Again, we think that Art.,
             6030, supra, Froviding for the appointment of a deputy
             supervisor ano prescribing his duties, gives ample grounds
             for a legal inference that such deputy was an officer in
             contemplation of this statute. While not a necessary ad-
             junct, nevertheless the fact that a person receives his
             position by appointment is at least persuasive to some extent
             that such position is an office; if he receives such merely
             by employment, the inference might lean toward the fact that
             he was but an employee.
        An interestin;%case A-ox another state, to-wit, the case of
                         60 N.D. 741, 236 N.ii.358, 75 A.L.R. 134'7,holds
        iiootzv. ,:;elyea,
        l;:1ai
             R school teacher is not an officer; and in that case t?ie
        court said:
             11
              ,..%e duty of employing teachers is vested in the school
             board, anrlthis is done by contract. The relationship is
             purely contractuel in this state. There is no fixed tenure
             of office when a teacher is employed other than the pro-
             visions set forth in the contract. in this state the pro-
             fession is not under civil service rules. Jhen a teacher
             is employed ~bya school district she is not employed as an
             officer and she does not become an officer. Her rights are
             measured by the terms of her contract. As said in Board
             of Education of South Milwaukee v. State ex rel. Reed, 100
             Wis. 455, 76 N.';i.
                               351, 353, the teacher (was a mere employee,
             and not an officer of the district in question, and had no
             official relations to it. His services were to be rendered
             in consideration of a certain stipulated compensation. He
             was not an officer, within the meaning of the constitution
             and laws.'
             "The relationship between the teacher and school directors
             is pureljjcontractual. Clune v. School District, 166 r:is.
Honorable Joe C. Gladney, Page 4       O-4020


    452, 166 N;iV. 11, 6 A.L.R. 7360 State ex rel. O'Neil Y.
    Blied et al,, 188 kvis. h42, 2ok N.ii. 213.
    "Heath v, Johnson, 36 W. Va. 762, 15 S.E. 980, says: 'The
     occupation of a teacher of a free school in this state
     is not a public office, but an employment.'
     *In State ex. rel. Lewellen et al. v. Smith et al., 49
     Ne. 755, 69 N.W. 114, it is said: 'A contract to teach in
     one of the free schools of the ordinary districts is one
     of employment. The district, represented by the board, is
     an employer, and the teacher an employee. The teacher in
     such schools is not a public officer.'"
In 75 American Law Reports 1352 is an annotation, which says:
     "The courts are almost unanimous in holding that the posi-
     tion'of a teacher is that of employee, resting on the con-
     tract of employment, and not that of public officer."
It is our opinion that a superintendent of an independent school
district is not an officer within the meaning of said Article
159, P.C. Our answer to your first question is )tNo7'.
We will now proceed to answer your second question. We have
examined the statutes, and we have been una'oleto find that the
acts of the acts of the superintendent, as outlined by you,,
constitute any offense, except swindling. Swindling is defined
in Article 1545, Penal Code, as follows:
     "'Swindling' is the acquisition of any personal or movable
     property, money or instrument of writing conveying or
     securing a valuable right, by means of some false or deceit-
     ful pretense or device, or fraudulent representation, with
     intent to appropriate the same to the use of the party so
     acquiring, or of destroying or impairing the right of the
     party justly entitled to the same."
The punishment for swindling is prescribed in Article 1550, Penal
Code, to be the same as the punishment for theft, which is pre-
scribed in Articles 1421 and 1422, Penal Code, and that is,
that if the value of the money or other property acquired is
fifty dollars or over the punishment shall be not less than two
nor more than ten years confinement in the penitentiary, and
that if the value of the property is under fifty dollars and
over five dollars the punishment shall be imprioonnent in jail
not exceeding two years and by fine not exceeding five hundred
dollars, or by such imprisonment without fine, and that if the
value of the property is five dollars or under the punishment
shall be by a fine not exceeding two hundred dollars.
.   .


        Honorable Joe C. Gladney, Page 5 ' .~    0~4020    _.
                                    .   1.


        The elements of the offense of swindling are stated in the case
        of McDaniel v. State, 63 Tex. Cr. R. 260, 140 S.W. 232, in which
        the court said:
             1,..,In Blum v. State, 20 Tex. App 57ti,54 Am. Rep. 530, the
             court lays down four distinct elements of swindling, all
             of which must concur, as follows: (1) There must be an
             intent to defraud: (2) there must be an actual act of fraud
                       * (3) false pretenses must have been made by the
             ~g!J3”[,,     the fraud must have been accomplished by
             me:ns o$ the false pretenses made use of for the purpose..'f
        See also the c;\seof Noblitt v. State, 103 Te:;.Cr. R. 550, 2dl
        s.iv.849.
        Of course, a conviction for swindling under the facts outlined
        above depends upon said facts being proven, ?ildupon the jury,
        or the judge in the event a jur;ris waived, finding that said
        facts are true.
        Under the facts outlined above each transaction in which a sum
        of money -;ras
                     acquired was a separate offense, and in no instance
        was the sum of money as much as fifty dollars. Therefore, each
        of the offenses were misdemeanors.
        It is our opinion that under the facts stated above the superin-
        tendent in question is guilty of several offenses of misdemeanor
        swindling. iieare unable to find that he is guilty of any other
        offense.
        We hope this oni::ion~,:ill
                                  be of some value to you in your effort
        to prosecute the cases in question.
                                               Yours very truly
                                          AT'~ORNEYGENERAL GF TEXAS


        APPROVEZ'FEB. 19, 1742
                                          BY
           GROVER SELWRS                            Cecil C. Rotsch
                                                          Assistant



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