           EKE                 YGENERAL




Hon. Clarence L. 'Darter        Ooinion
                                 -      NO: d-627
County Attorney
Childress~County                Rer   Whether a constable may
Childress,'Texas                      act as a deputy tax
                                      assessor-collector for
                                      one day in a poll tax
                                      drive put on by the
Dear Mr. Darter:                      Jaycees.
        In view of the provisions of Section 40 of Article
 XVI of the Constitution of Texas, you have requested our
:opinion as to whether an individual vacated his office of
 constable upon the acceptance of the position of deputy tax
'assessor-collector for only one day in a poll tax drive put
 on by the Jayce.es. You state in your request that the consta-
 ble'accepted this position along with other'Jaycees,in the
 community as a civic project, receiving as compensation'the
 sum of,$1.00.
       Section 40 of Article XVI of the Constitution of Texas
provides:
            "Ro person shall hold or exercise, at
       the same time, more than one civil office
       of emolument, except . . .' (Rxc'eptionsnot
       applicable)
       In Attorney General's Opinion O-4313 (lg42), in deter-
mining whether membe.rshipupon an Alien Enemy Hearing Board
constituted a civil office of emolument within the meanina of
Section 40 of Article XVI of the Constitution of Texas, tEis
office applied the .rule,announcedin Barney v. Hawkins, 79
Mont. 506, 257 P. 411 (1927), 53 A.L.R. 583. The Court's analy-
sis of the authorities‘uRon.the questionsof what constitutes
an office is stated in Barney v. Hawkins, supra, as follows:
            "After an exhaustive examination of the
       authorities, we hold that five elements are
       indispensable in any position of public employ-
       ment, in order to make it a public office of
       a civil nature2 (1) It must be created by the
       Constitution or by the Legislature or created
       by a municipality or other body throu   author-
       ity conferred by the Legislature;      it mrist
                           -3042-
Hon. Clarence L. Darter, page 2 (C-627)


      possess a delegation of a portion of the sover-
      eign power of government, to be exercised for
      the benefit of the public; (3) the’powers con-
      ferred, and the duties to be discharged, must
      be defined, directly or impliedly, by the legis-
      lature 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;
      must have some permanency and continuit
                                          ,, p&i
      not be only temporary or occasional. (Emphasis
      added)
       Applying the above-quoted analysis to the facts stated
in your request, it is our opinion that the constable in ques-
tion did not accept another civil office of emolument. There
was’no permanency or continuity involved, by the acceptance
of the position of deputy tax assessor-collector for one day,
in the poll~tax drive by the Jaycees.
       Therefore, you are advised that the constable in ques-
tion did not vacate his office of constable.
                         SUMMARY
      A person holding the office of constable did
      not vacate such office by the acceptance of
      the position of deputy tax assessor-collector
      for one day in a poll tax drive put on by the
      Jaycees of a community.
                               Yours   very truly,
                               WAGGORER CARR
                               Attorney General



                                   Assistant




                      -3043-
Hon. Clarence L. Darter, page 3 (c-627)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Banks
Ben Rarrison
Linward Shivers
Howard Fender
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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