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                HEATTORNEY              GENERAL
                         OFTEXAS




                             October 2. 1969


Honorable Enrique H. Pena              Opinion No.M-484
County Attorney
El Paso County                        Re: Whether an employee of
El Paso, Texas                            a~ county or a hospital
                                          district must be a resi-
                                          dent of the State, County
                                          or Hospital District.
Dear Mr.Pena:

     You have requested an opinion from this office upon the
question of whether an employee of a county or hospital district
must be a resident of the State, County or Hospital District.

     This office has heretofore concluded in Attorney General's
Opinion Number W-1412   (1962) that a tax assessor and collector
of an independent school district would not have to reside
within the territorial confines of the school district of his
employment; and in Attorney General's Opinion Number M-308
(19691, the opinion was expressed that a deputy constable did
not have to reside within the precinct he served as such deputy.

      Your letter, however, poses one additional matter that
was not covered in the two former opinions, that being whether
a person had to be a resident of the State as well as of the
County or Hospital District in order to be eligible for employ-
ment.

     The only constitutional or statutory requirement as to
residence of public officials or employees pertains to civil
officers and is found in Section 14, Article XVI of the Con-
stitution of Texas, which provides:




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                                                     .




Honorable Enrique H. Pena, page 2 (M-494)


          "All civil officers shall reside within the
     State: and all district or county officers within
     their districts or counties, and shall keep their
     offices at such places as may be required by law: and
     failure to comply with this condition shall vacate
     the office so held."

     Public officers or civil officers of this State occupy a
different status than an employee, and the distinguishing
feature was stated by the Supreme Court of Texas in Aldine Inde-
pendent School District v. Standlev, 154 Tex. 547, 200 S.W.2d
578 (1955), wherein the following was quoted from the case of
Dunbar v. Brazoria County, 224 S.W.2d 738 (Civ.App. 1949, error
ref.):

          "From the above authorities, it is apparent, we
     think, that the determining factor which distinguishes
     a public officer from an employee is whether any
     sovereiqn function of qovernment is conferred upon
     the individual to be exercised bv him for the benefit
     of the public larselv independent of the control of
     others.* (Emphasis added.)

     The above holding by our Supreme Court is recognized
by the statement and authorities cited in 42 American Juris-
prudence 890, Public Officers, Section 12, from which we
quote:

          "A position is a public office when it is created
     by law, with duties cast on the incumbent which in-
     volve some portion of the sovereign power and in the
     performance of which the public is concerned, and
     which also are continuing in their nature and is not
     occasional or intermittent: while a public employment,
     on the other hand, is a position in the public ser-
     vice which lacks sufficient of the foregoing elements
     or characteristics to make it an office."

     It would appear that employees who do not meet the
criteria set forth in the above authorities for holders




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Honorable Enrique H. Pena, page 3 (M-484)

of a public office would not have to be residents of the
State, County or Hospital District where employed.

                         SUMMARY

               An employee of a county or hospital
          district, as distinguished from an officer
          thereof who exercises sovereign powers for
          the benefit of the public largely inde-
          pendent of the control of others, is not
          required to be a resident of the State,
          County or Hospital District where em-
          ployed.




                                       General of Texas

Prepared by Gordon C. Cass
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman

Roland Allen
James M. Mabry
Brandon Bickett
Arthur Sandlin

MFADE F. GRIFFIN
Staff Legal Assistant

HAWTHORNE PHILLIPS
Executive Assistant

NOLA WHITE
First Assistant




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