A.rrOH?sacYGENERAI.
Ron. Dan W. Jackson
Criminal District  Attorney
Houston, Texas
Dear Sir:                     gttentlon:       Palmer Hutcheson,       Jr.
                              Opinion      NO. 0-2056
                              Re:   Elections    - Judges, Clerks and
                                    Supervisors    - Article 2940, Revised
                                    Clv~i.1 Statutes.
         Your request   for   opinion      upon the following     questions:
                "1.    Are school teachers,     school trustees,
         officers   and employees of the various school
         systems and~dlstricts;        employees and officers    of
         the ,various drainage districts        and other employees
         paid by tax money but not specially~llsted           in
         Rrticle'2940,     disqualified    as judges, clerks or,
         supervisors     of elections?
               l12." If so,   is such disqualification          mandatory
         or directory?"         ~
has been received       and carefully        considered   by this     department.
         Article 2940, Revised      Civil     Statutes    of Texas,    as amended,
reads,     In part, as follows:
               "No one who holds an office  of profit   or trust under
         the United States or this State, or In any city or town
         in this State, or within thirty   (30) days after.resignlng
         or being dismissed from any such office,     except Notary
         Public, or who is a candidate for office,     or who has not
         paid his poll tax, shall act as judge, clerk or supervisor
         of any election...."
      We quote from 34 Texas Jurisprudence,                pages 332-3-4,~,
Public officers   - Section 2 - Definitions               and characteristics,
as follows:
               "Rany judicial definitions of 'public offlce( are to
         be found in the reported cases, but they are substantially
         of the same import.   It is said to be a right to exercise
         a public function or employment and take the fees and
         emoluments belonging to it; 'a public stationor   employment
Hon. Dan W. Jackson,     Page 2, 0-2056


    conferred by the appointment of government;land       ‘the
    right,   authority,  and duty created and conferred by law,
    by which, for a given period,     either fixed by law, or
    enduring at the pleasure of the creating power, an
    Individual   is Invested with some portlon,of    the sovereign
    functions   of the government, to be exercised    by him for
    the benefit of the public.’     The individual   so Invested Is
    a public officer.     He la a person who exercises   some
    functions   of the government - one who Is commissioned
    or authorized to perform any public duty.
            “The Revised Statutes provide that when an
    officer    is referred to in any civil    or criminal law
    of this State, an officer     of this.State    Is meant,
    unless otherwise expressly provided;        and various articles
    of the Penal Code define ‘officer’       as the term is used
    in denouncing particular     offenses.
     “‘Office’  embraces the Ideas of tenure, duration,         emolument
    and dut le 8. Among the criteria       for determining whether
    an employment Is a public office’are        the following;    the
    delegation   of a portion of the sovereign functions         of the
    government; the requirement of an official         oath; that the
    power8 entrusted are c0nferre.d by law and not by
    contract;   and the fixing of the duration or term of
    office.    It ia the duty pertaining      to the office
    and the nature of that duty, ~snd not the extent of
    .authority which make the Incumbent an officer;         and one
     Is none the lessan     officer   because his authM%ty Is
    confined to narrow limits.        Salary or comms&%ion is not
     essential  to constitute     an emplbyment an office;     it is
    a mere incident and form8 no part of the office.
          “There IS, as we shall see presently,  a distinction
    between the ,offlce and the term of office,  and between
    an office   and a public contract or employment.”
            We quote from 34 Texas Jurisprudence,  page 324,
Public   officers   - contract dlstlngulshed from office, as follows:
          “A public office   is something different    from
    a public contract.     Offickrs hold, their positions
    by election   or appointment and not by contract.”
            We quote from 34 Texas Jurisprudence,     page8 325-6,
Publlo   officers   - employment dlsti~ngulshed,‘as   follows:
          “There is a material difference  also between $%
     public office   and a public employment. .The relation
     between an office   bolder and the government under which
   .      .




Hon. Dan W. Jackson,      Page 3, 0-2956


       he function8 Is not that of an employer and employee,
       and ~thelr respectlve.rights   are not to be determined
       by application    of the rules of contracts   of employment.
       As said by Chief Justice br8hal1,     ,‘Although an office
       is an employment,, it does not follow that every employ-
       ment,,is an office.
              “The most Important distinction          ~3s that the
      creation    and conferring        of an office   Involves a delegation
      to .the, individual         of some. of the sovereign functions    of
      t,hegov,ernment,         to be exercised   by ,him for the benefit of
      the public. . Other distinctions           are:~ that en office    must
      be. creat~ed by law, while an employment Mayobe:; and
      frequent 1y Is , created ,by c.ontract ;, and ,offlcers        are
      usually required to~.take an oath’ and serve for a definite
      term; and,. that the duties, of an office          are. generally
      continuing ,,and permanent ,.rather than temporary and
      transitory.    . ,. . “~
       ”                       :.
The case; of Moots. v.. Belyea, 60 N.D. 741; 2 6 N.W. 358, 75
A.L.R. 1347, .(Supreme, Court of North Dakota 3 holds that a
schoo$ _teacher employed ‘by a common.school district              Is an
employee and not an,.offlcer           and that the.relatlonshlp     between
her and the sqhool board .ls that of contractonly.
           ,-
We quote:.from 75 A.L.R,,           &&8 1352-3, 88 follows:
              !%e courts are almost unanimous In holding that
       thqie;position of a teacher is that of~~,anemployee, resting
       on the contract. of employment, and not that!~of public.
       officer.“’
       The ‘co&%s’iof Texas have repeatedly held that school
trustees ~:are public -,offlcers of this State.    See the ,followlng
case8:
             “Rowan v. ‘King, 94 Tex. 659, 55 SW 123;
             Kimbrough v. Darnett, 93 Tex. 301, 55 SW 120;
             Lee v. Leonard IInd. School District,   24 SW (2)
       443;
            Thomas v. Abernathy County line Ind. School Dist.,
       278 SW 3x.290     SW 152;
            Buchanan v. Graham, 81 SW 12j7;
            Hend,ricks~ v. State, 49 SW 705..  .'
      We :quote ,,from 15 Texas Jurisprudence,    page 732, Drainage
Districts.*  Section :l?,; Drainage Commlssloners - Powers in
General,, as follows :;
                          ;..,  ” .,~_.
       “The statutes provide ,,for the election    of drainage
Hon. Dan W. Jackson,      Page 4, 0-2056


      commissioners,    (Wt. 8119, R.C.S.) or In lieu
      thereof their appointment, by the comml$stone~psl ‘court..
      (Art, 8118, R.C.S.) Other provisions -regulate the
      EI?      e: commissioners’ term8 of office;.(Art,       81.19,
             7  their  salaries,   (Art. 8120,   R.C.S.)   their  oath
      oi if&e.      (Art. 8121,‘R.C.S.)   official’   bond8,,.Y(AF$;:~ :‘~
      8122, R,C,S.) and their organization,”         (Parerithetidal~ ” :
      $nsexMons of statutes oust)
    With reference %o your flrat quest&on ~you are. i?ti&eti4%$ly
advised that It is the opinion: of this ‘departaient~ $hat” 8chool
trustee8 and drainage comm$ssloners are public @ffice?s, off,
this State and are dlsquallfled        from aatlng as ‘jw,g&s,:,~ile$ks
or $upemrisora of any election       In this State,. ‘,Y& :,a’ee Purther~
respectfully    advised .that it is the. opinion ~of th$iae#artment
that 8ChOOl teacher8 are nqt public ‘offlcalrs         &nd iir&~~t,:,~~‘. ,“~
disquallf$ed    thereby from acting ‘a8 judges, -‘oletiks~~,~or   _ :: :, ‘,I’
supervisors    of any election   in this 3tate land t@+niay
legally   serve as eleatlon    judges,:, clerks oar super$lsora:~$i~
not otherwise disqualified,       ,You are, further Pesp@a$ful,li’ :.:,          ~~
advised that It ,ls the op+ion       of’thls.  depsrtment,‘.that,.~‘,      ,.
employee8 of the various school, systema and d*ainige~~d.lsti$ote
who are not holders of an’office~ of prbflt. or .$$uat~;,uitdeP~-.th6 ,~’
United States or this, State, nor in .,‘any‘&lt$:,:o$+ t6wn’:i$thi$         ‘. :~’
State, and who are not otherwise ~.disq~l,ifled ,~by~.lei+(~~:~:&Q.~    ~:~:~’ 1
legally   act as judges, clerk8 or’ su$~fllsoFb ,&p~-ti.letit$+s:~$~
this State.     We fael that you oan,readIZy, deter*mine~.whether,~~~, ”
or not an employee is a~public officer         bjr. applying the wle.g
laid down by the quoted provlelons.of ‘Texas Jurlsptia~ncai                ~~
8upra, to the facts In each situation         presented to’~you.
   We have carefully  read then ~opinian’ of this department q ,,“’
dated May 6, 1932, written -by Ron.. Bruce ~W,BrJranc,, :F&~st ,.. ,,
Assistant Attorney General,’ referred, to by, you, ~,a!&& fiti
that same not appllaable~here   beaause of a diPferent.queetian
Involved.
   We have read the cases      cited   by you in your brief      r&lativ,e~
to the second questlon.
    lihe case of Savage v. Umphrles, Civi App. 118 SW 968;:      1
cited by you In your brief,    decided .April 20, 19G9i. hoI&
among other thlnge, that”wJaere the. law ,,mqulred the~,~a;ppointment
of two judges In a precinct     If one wa8 dlsquslifled  to eat;, ~
and there 18 nothing to show that .the other d1d’tiot ~ac$;‘~‘@nd
nothing tb show that the election     waa not falnly held~in that’
precinct   the election  1~ that precinct   will not be h6ld to,be,,
void because ~~oni:;$.@g& had~no Fight: to. act.
   The case of Gayle.:!v. Alexander      (Civ,App.)    75 SW.2d:7061”~
Hon. Dan W. Jackson,       Page 5, 0-2056


cited by you In your brief,        holds among other things, that
although the election     officers     were disquallfled   that fact did
not render t-he election     void, since statute is directory       asp,
regards vallddty of electlonj         ln.absence~ of attempted exercise
of influence   on electors,     or unfairness~ orfraud,     where
qualifications   of majority of election         officers were not
challenged.
      We quote from the opinion of the court               In the case of
,Gayle v.. Alexander,-supra, as follows:
            "Appellant Insists         that the.provlslons        of Article
     2940 are mandatory;:that           each of the aforesaid         election
     officers    aforesaid      was disqualified       and prohibited        thereby
     from acting as such; and that the election                  in each such
     votlng~precinctwas,          by reason of ~their partic.lpatlon             in
     holding thesame., absolutely            void.'    A,Mandatoryiprovls5on
     In a: statute +s...one, the omLsslon tomfollow, which renders the
     proc,eed$,ng.to, which It. relates         Illegal      and void., whlle,.a
     dlrectoSy:~:~Foaislon,is.:.one,,       the,,observance      of which is not
     necessaryto~the         valldlty'~of    ~the.proceedlng.        &statute       may ':'
     & mandatory in some respects.and~.dlreat._~n~
     so far as the selection           of election      officers    is concerned,,.
     saidarticle       .mlght well be deemed mandatoryand compliance
     therewith required when ~the ellglb1llty.of~.sn                 officer     so,,,
     selected 'is denled,'or his right to serve as.such: assailed
     by'lariy proper proceeding prlor,to            his actual~servlce,...          &
     such: situation      Is presented in this case, But should the
     provisionsof        said article      In that ,phase of its application
     be held mandatory, it does not necessarily                  follow that when
     a person named in said article             has been selected         as an
     election    officer     for a,particular       voting precinct;         and his
     selection     has not been agsalled but has been acaulesced in
     by the qualified        electors     of such precinct       by participating
     in the election        held therein,     and the votes cast in such
     precinct    have been fairly         and correctly       counted and           .,
     tabulated'and       return thereof duly made, that such election
     as to said.preclnct~        should, s~olely bye reason of the
     particlpatlon'of        such election      officer      in holdfng the
     same, be declared void, the returns thereof excluded from
     the canvass~of the votescast              In said election        lh.the
     entire county, and the,voters            of .such precinct        thereby In
     effect    disfranchised.      ~,(Underscorlng ours)
            ."....We   thdnk under the findings of.the.court       \
     herelnbefore      ~recited and the above authorities,    that the,
     election      In the several voting precincts    under consideration
     was not 'rendered void by the participation         of such
     disauallfied      election  officers  in the holdinn thereof.      So
     far-as ,the provisions      ,of said article effect-the   valid%=
     of elections      In the holding of which disqualified      officers
Ron. Dan W. Jackson,     Page 6        0-2056


    or clerks participated,     the same, In the absence of some
    Imputation of attempted exercise      of lnfluence'upon the
    electors, or unfairness     or fraud, may well be~held to have
    merely a directory   effect."    (Under scoring ours)
        The case of Miller at ai v. Tucker, et al, 119 SW 2d 92,
decided June 23, 1938, by the Beaumont Court of Civil App,eals,
holds that a local option election     was not rendered Invalid
because the mayor of a town In a precinct     acted as precldlng
officer   contrary to a statute prohibiting   public office   holders
from acting as election    officers , where the election   was fairly,
and honestly held and no objection     was made to the mayor's
serving,   since the statute was merely directory.      This opinion
cited and followed the case of Gayle v. Alexander, supra.
       In answer to your second question,          you are respectfully
advised that It Is the opinion of this department that Article
29&O, Revised Civil Statutes , as amended, is directory            lnso~ far
as said article    affects    the validity   of electlons   in the holding
of which disqualified      officers   or clerks participated,     in the
absence of some Imputation of attempted exercise           of Influence
upon the electors,     or unfairness     or fraud.

      We wish to thank you for your able brief in this matter
which has aided us greatly in passing upon your questlon.~'
                                  Very truly    yours
                           ATTORNEY
                                  GERERALOF TEXAS
                             S/ Wm. J. Fanning

                           BY         _.
                                        Wm. J. Fanning
                                               Assistant

WJF :AW/c ge

APPROVED  APRIL 2, 1940
f$ .Gerald C. Mann
ATl'ORNEYGENERALOF TEXAS
Approved Opinion Committee
By BWB, Chairman
