               THE         ATTORNEX             GENERAL
                               OF     TEXAS
                            Aus-qv. 7%xAl37lsrll
                                May,28, 1969


Honorable Frank Coffey                        Opinion No. M-409
Criminal District Attorney
Tarrant County Courthouse                     Re:   Whether a Criminal District
Fort Worth, Texas 76102                             Judge may also be appointed
                                                    and serve as a member of
                                                    the Board of Managers of a
                                                    County Hospital District,
                                                    without jeopardizing his
                                                    right to continue as a
                                                    Criminal District Judge.
Dear Mr, Coffey:

     You have requested the opinion of this office regarding the
above question.

     Two provisions of the Texas Constitution have possible bear-
ing upon the determination of your problem, Sections 33 and 40
of Article XVI. Section 40 is concerned with the holding of
two civil offices of emolument, and prohibits a District Judge
from holding another civil office of emolument. Under Article
4494n. Section 5, Vernon's Civil Statutes, however, the members
of the Board of Managers of a County Hospital District are to
serve without pay. Therefore, Section 40 does not apply to
this problem. However, Section 33 is very clearly in point.
It is quoted, in pertinent part, as follows:

          "The Accounting Officers of this State shall
     neither draw nor pay a warrant upon the Treasury in
     favor of any person for salary or compensation as
     aqent, officer or appointee, who holdsat the same
     time any other office or position of honor, trust or
     profit, under this State, except as prescribed in
     this Constitution.
          II
               .   .   .




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Honorable Frank Coffey, page 2 (M- 409 )


          "It is further provided, until September 1, 1969;
     and thereafter only if authorized by the Legislature by
     general law under such restrictions and limitations
     as the Legislature may prescribe, that a non-elective
     State officer or employee may hold other non-elective
     offices or positions of honor, trust, or profit under
     this State or the United States, if the other offices
     or positions are of benefit to the State of Texas or
     are required by State or Federal law, and there is
     no conflict with the original office or position for
     which he receives salary or compensation. No member
     of the Legislature of this State may hold any other
     office or position of profit under this state, or the
     united States." (Emphasis supplied.)

     Inasmuch as a Criminal District Judge is an elective officer,
he cannot fall within the exclusions set forth in the foregoing
constitutional provision. We are left only with the determina-
tion of whether a member of the Board of Managers of a County
Hospital District holds an "office or position of honor, trust,
or profit, under this State".

     In determining what constitutes an office, within the
meaning of a constitutional provision, this office has fre-
quently applied the.criteria set forth in Barney v. Hawkins,
79 Mont. 506, 257 P. 411, 53 A.L.R. 583 (1927), to wit:

           "After an exhaustive examination of the authorities,
     we hold that five elements are indispensable in any
     position of public employment, in order to make it a
     public office of a civil nature: (1) It must be
     created by the Constitution or by the Legislature or
     created by a municipality or other body through auth-
     ority conferred by the Legislature7 (2) It must
     possess a delegation'of a portion of the sovereign
     power of government, to be exercised for the benefit
     of the public; (3) The powers conferred, and the
     duties to be discharged, must be defined, directly
     or impliedly, by the legislature or through legisla-
     tive authority: (4) The duties must be performed
      independently and without control of a superior power,

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Honorable Frank Coffey, page 3 (M-409 )


      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: (5) It must have some
      permanency and continuity, and not be only temporary
      or occasional."

     Applying the foregoing criteria to the Board of Managers of
a County Hospital District, established under Article 4494n,
Vernon's Civil Statutes, it is the opinion of this office that
the powers, duties and responsibilities of a member of the Board
of Managers of a County Hospital District are such as to make
that position one of honor and trust within the meaning of
Section 33, Article XVI, Texas Constitution.

       In answer to your specific question, you are advised that
in   the event the Criminal District Judge in question is appointed
to   and accepts a position as a member of the Board of Managers
of   a County Hospital District, the Judge would not be entitled
to   receive any State compensation for the position he now holds.

                               SUMMARY

               A member of the Board of Managers of a County
            Hospital District holds a position of honor or
            trust, within the meaning of Section 33, Article XVI,
            Texas Constitution, and an elective Criminal Dis-
            trict Judge may not accept such an office without
            waiving his entitlement to compensation from the
            State.

                                     Yourp'very truly,



                                     kRANP@   C.-MARTIN
                                     Attorscy General of Texas

PREPARED BY MALCOLM L. QUICK
Assistant Attorney General

APPROVED:
OPINION COMMITTEE
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Honorable Frank Coffee.   page 4   hl- 409)




Kern8 Taylor, Umirmm ~' .A-',
George Kelton, Vice-Chairman

Neil William
Jim Swearingen
Jack Spark6
Cam Larry

W. Ii.GEPPERT
Staff Legal Assistant

HAWTHORNE PHILLIPS
Executive Assistant




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