       THEATTORNEYGENERAL


                     Ausnnr   11. %hXAS




                      December   17 1948

Hon. Jack Rosa                    Opinion Ro.   v-743
Criminal Distrlot Attorney
Hidalgo County                    R8: The legality of one
Rdinburg, Texas                       person being aimul-
                                      taneously the County
                                      Treasurer and a part-
                                      time accountant in
                                      the office of the
                                      County Auditor.

Dear Sir:
          Reference is made to your recent request which
roads, in part, a8 follows:
          "Mrs. Be1811Singleton ie the duly elsc-
     ted qualified and aoting County TreasuPeP
     of didalgo County, Texas. On January 13,
     1948, the two dlatrict jUC4389of this CoWa-
     ty 8nteP8d the followl~ Order:
            "'ORDER RAMIRG ASSISTART ARD ACCOulr-
            TARTS, ARD PROVIDIRG SALARIES TRERR-
            FOR,POR GOURTY AUDITOR, RIDATGO COUR-
            TY, TEXAS
          "011 this day came on to be considered
     the matter of appointing Assistant and Ac-
     countants to the County Auditor, and It ap-
     p8clrbg that proper appllaatlon has been
     mad8 for the appPOva1 Of Salaries t0 be
     pqid said assistant and accountants in said
     office;
           "'It is, therefore, Ordered, Adjudged
     and Decreed that Mrs. Bass Williamson be,
     and she is hereby appointed Assistant Coun-
     ty Auditor,  and that the salary of the said
    -I&s. Bess Williamson be Tvo Hundred Dollars
     ($200.00) per moath, effective January 1
     194%.
            "'And that S. J. Cardenas be and he is
                                                     ’   ,

Hon. Jack Ross, page 2   (v-743)


    hereby appointed Accountant, and that the
    salary of the raid S. Jo krdenas be, and
    is hereby set at Two Hundred and Tventy-
    five Dollars ($225.00) per month, 8ff8C-
    tlve January 1, 1948,
          "'And that Mrs, Helen Singleton be,
     and she is hereby appointed a part time
     Accountant in the County Auditor"6 Office
     of Hidalgo County, Texas, and that the
     salary of the said ha. Helen Singleton
     be, and is hereby set at Fifty Dollars
     {$,,*OO) per month, effective January 1,
         .
          "'It Is further ordered that this OP-
     der be Spread upon the minUt8s of the Dis-
     trict Courts of Hidalgo, Texas, and that a
     08rtifi8d copy hereof be furnished the Com-
     missioner's Court of Hidalgo County, Texas.
          "'This 13th day of January, A, D. 1948,
                             BRYCE FRRGUSOB
                         Brycs Ferguson, Judge
                         of the 92nd Dls,Ct,
                             W.R.BLALOCK
                         W.R.Blalook Judge of.
                         the 93rd Dls,Ct,s
          "A certified copy of such Order was
     furnished the Commissioners Court of this
     county and an Order pass8d by the Commls-
     sioners Cowt in compliance therewith, Pay-
     ments have been made to Wrs, Singl8tOn a8
     directed in said Order.
          "You will note that that portion of
     the order having to do with RN. Helen
     Singleton (Par. 41, shows an appointment
     as 'part time aCCOUntant', and not as an
     asslstant or deputy.,,
          “P(o oath of Office was required Of WIVO
     Singleton nor was she required to giv8 bond
     in connection with her service as part time
     assistant in the offic8 of County Auditor,
     which course of action was based upon the
          Eon. Jack Ross, page 3   (V-743)


              decision of the County Auditor that she
              was acting only as clerical help and not
              as an assistant or deputy county auditor.
              I, therefore, respectfully ask for your
              Opinion on the fOllOVing qU8StiOn:
                    *Question Ro. One:
                    "'May the County Auditor and Dis-
               trict Judges lawfully appoint an accoun-
               tant or other clerical help to perform
               duties in the office of the County Audi-      '-
               tor without such accountant or other cler-
               ical help being designated an assFstant or
               deputy COUIltyauditor?'
                    "Question Ro. Two:

                    “‘May an assistant, deputy, accoun-
               tant or other clerical help hired by the
               County Auditor, approved by the District
               Judges and certified to the Commissioners
               Court be lawfully paid out of county funds
               when such asslstsnt, deputy, accountant
               OP other clerical help has not taken the
               oath of office for faithful performance of
               dUti8S as required by Art. 1650, R.C.S.?'
                    "c$uestionlo. Three:
                   'IMay an assistant, deputy, accoun-
              tant or other clerical help hired by the
              County Auditor, approved by the District
              Judges and certified to the Commissioner8
              Court be lawfully paid out of county funds
              when such assistant, deputy, accountant Or
              other cl.erlcal help has not given a bond?'
                   "Question Ro. Four:
                        .'
                   'Way a duly elected, qualified and
              acting County Treasurer serve aa such Coun-
            ' ty Tr8aSUP8r and at th8 same time serve as
              an assistant or deputy county auditor, ap-
              @&dCyd       qualified as provided in Art.
                            without being in violation of
:.   '.       the pP&is&s     of Art. 16 Section 40 Of the
              Constitution of the State of Texas?'
Hon. Jack DOSS, page 4       (v-743)



          ”
              Question   No. F~vQ:
          **May the County of Hidalgo Texas
     lawfully pay the Sum of fifty do&rs   ($50.-
     00) per month to Mrs. &&en Singleton, the
     duly elected, qualified and acting County
     Treasurer of said County, for s8~vlces as
     'part time accountant" in the office of the
     County Auditor of said county when such ser-
     vices rendered by the said Mrs. H818n gln-
      leton are not required of h8P as County
     8reasurer and do not interfere with the dis-
     charge of those duties imposed upon her by
     1aV as County Treasurer, the said &a. H818n
     Singleton not having taken an oath of office
     for faithful performance of duty in connec-
     tion with her services as 'part time accoun-
     tant" in the office of County Auditor?D
          U'&8stion Do, six:
                                         :~
          "If 8x Officio Compensation may be
     gPant8d by the Commissioners Court ?Or ex
     officio services rendered by the County
     Treasurer, may payment be made for such
     s8Pvices PeZXd8P8dprior to the date of the
     Order of the Commission8rs COUrt granting
     the SaUb?"
          The authority for the appointment of assistant
or deputy auditors is found in Art. 1650, V, C. S., and
is, in prrt, as follows:
          'The County Auditor of any county of
     this State may, at any time, with the con-
     sent of the District Judge or District
     Judges having jurisdiction aS hereinafter
     provided, appoint a first assistant and
     other assistants who shall be authorized
     to discharge such duties as may be assign-
     ed to them by the County Auditor and pro-
     vided ior by law,  In counties where only
     one assistant is appointed, such assistant
     shall be authorized to act fop the County
     Auditor during his absence or unavoidable
     detention with respect to such duties as
     are P8qUlr8d by law of the County Auditor.
     In counties in which more than one aSSiS-
     tant shall be appointed, the County Audi-
Eon. Jack Doss, page 5   (v-743)


    tor may designate the aeaistant who shall
    be authorised to act for him during his      ',
    absence or unavoidable detention. All of’
    said assistants shall take the'usual oath
    of office for faithful perfornancre,ofduty
    and may be required to give such bond as
    the County Auditor may detepmine, which
    bond shall be paid for by the oounty and
    shall run in favor of the county and of the
    County Auditor as their Interest may appear.
            "The County Auditor shall prepare a
    list of the number of deputies sought to be
    appointed, their duties, qualification6 and
    experience, and the salaries to be paid Bach,
    and shall certify the list to the District
    Judge, or in the event of more than one Dis-
    trict Judge in the county, to the District
    Judges, and the District Judge or the Dis-
    trict    Judges, shall then oarefully consider
    the applicationfor the appointment of said
    assistants    and may make all neceesary in-
    quiries concerning the qualifications of
    the persons named, the positions nought to
    be filled and the reasonableness of the sal-
    aries requested, and If, after such consid-
    eration, the District Judge, or in the event
    of more than one District Judge, a majority
    of the District Judges shall apprOV8 the ap-
    polntments sought to be made or any number
    thereof, he or they~shall prepare a list of
    the appointees so approved and the salaries
    to be paid 8aoh and certify said list to the
    Commissioners Court of said county. The Com-
    missioners Court shall thereupon Order the
    amount paid from the Grneral Fund of sald
    county upon th8 performence of the services;
    and said Court shall appropriate adequate
    funds for the purpose; . . . The County Audl-
    tor shall have the right to discontinue the
    SerViCeS    of any assisteut employed in ac-
    cordance with the provisions of this Arti-
    cle, but no assistant shall be employ;wieex-
    cept in the manner herein provided.
    District Judge or District Judges giving
    consent to the Auditor to appoint an assis-
    tant or assistants    shall annua1l.yhave the
    right to withdraw such consent, and,che.nga
    the number of assistant5 permitted.
Hon. Jack Rosa, page 6   (V-743)



We do not believe that the above statute is authority, noP
aPe v4 able to find any authority, whereby th8 County Audl-
tor and District Judges may appoint an accountant or cler-
ical help other than assistant OP deputy auditors. In the
absence of such authority, your first question is ansver-
ed in the negative.
          We b8li8V8 it is mandatory that th8 asalatant
or deputy county auditor take,the oath as rovlded under
Article 1650. Even 50, in 34 Tex, Jup, 61 1 , we find the
folloving:
          'An officer de facto he5 b88n broad-
     ly defined as one who has the reputation
     of being the officer he assumes to be, and
     yet is not Sgood officer in point of law
     also as one who, under color of right, en-
     t8rS into the pOSSe55ion Of an Office and
     exercises the functions thereof, or who
     exercises the duties of the office Und8P
     color of a known and valid appointment or
     election, but falls to conform to some pre-
     cedent requirement or condition, ai to take
     an oath, give a bond, or the like.
          In passing upon the question of whether a de
facto officer may demand pay for services rendered as
such in the C&S8 of Uhr v. Brown, 191 S,W. 379, the couPt
said:
          "It has been held in this state that a
     de facto officer can demand pay for his ser-
     ~1086, and there iS much authority to the
     same effect. We will not concern ouPs8lv86
     with the side lssus as to the tPue rule to
     apply in such cases, for these men in good
     faith performed the services for which they
     were paid by July ordinances, for which uhr
     voted, and there ~8~8 no de jure claimants
     of the offices and the salary incident there-
     to, so it clearly appears th%t they were en-
     titldd t0 r8C8iV8 pay, o 0 0
          In view of the foregoing, It is our opinion
that an assistant OF deputy county auditor duly appolnt-
ed by the county auditor and approved by the District
Judges may be lawfully paid out of county funds for S8r-
vic'.es
      rendered even though he has not taken the oath of
office as required by Article 1650.
Eon. Jack Ross, page 7   (V-743)


           R4 further b8lieV8 that the voI?dingof Article
1650 leaves it within the sound diSoP8tiOn of the county
auditor as to Vh8th8P he Shall PequiPe the assistant or
deputy auditor to giV8 a bond. R8V4Pth81888, 8V8A if it
b8 mandatory that the assistant or deputy county auditor
give bond, the same rule of law as to taking the oath
would be applicable as to the giving of a bond. He would
be a de facto officer and, therefore,,aould be lawfully
paid out of county funds even though he has not given
bond.
          Your fourth question as pOS8d is not on8 wlth-
out difficulty. we muSt first determine whether the
assistant or deputy county auditor is a public!officer
iA order t0 prOp8Ply MaV8r  the Sam4 Sine8 g4CtfOA 40 Of
ArtidLe XVI of the Stats Constitution provides that:

          "Ro person shall hold or 4xc)rccia8,
                                             at
     the same time, moss than on4 Civil'Offio~e
     Of 8mOlUSl8At.. .
          YariOUS 8XC8ptiOAS immaterial here aP8 provld-
8d fOP in the abOV8 58CtfOn.
          Without question, the County TreaSuPer is 'a
public officer. Row, if the assistant OP deputy county
auditor is a public officer, then the same person could
not legally hold the two'offlcss contemporaneously since
it would be in violation of the above quoted QOnStitUtiOA-
al provision.
          In the case of &uerlcan Indemnity Co. v. Red
River Mat. Rank, 132 S.W.(2d) 47 , by the Court ‘of Civil
Appeals (vPit of error dismissed3 the county auditor was
held to be an officer of the county.
          In 34 Tex. Jur. 323, we find the criteria for
;z;;;ning'vhether ,an employment la a public office as
       :

         *'i)ffiC8'embraces the idea6 Of teAUP8,
     duration, emolu.meAtand duties. Among the
     criteria for determining vhethsr aA employ-,
     ment is a public office bF8 the fOllOViAg:
     the delegation of a portion of,the Sovereign
     functions of the govePAm8nt; the requirement
     of an official oath; that the powers entrust-
     ed are conferred by law and not by CoAtPact;
     and the fixing of the duration or term of
Hon. Jack Ross, page 8   (V-743)


     office e It is the duty pertaining to the
     office and the nature of that duty, and not
     the extent of authority which make the in-
     cumbent an officer; and one la none the less
     an officer because hi: authority is confined
     to narrow limits. D .
         In 22 R. C. L, 381, we find the following:
         "    . It may be stated as a gen-
    eral r;l;fthat a position is a public
    office when it is created by law, with
    duties cast on the incumbent which ln-
    volve an exercise of some portion of the
    sovereign power and in the performance
    of which the public Is concerned,'and whFch
    also are continuing in their nature and not
    occasional or Intermittent; while a public
    employment on the other hand, is a posi-
    tion which lacks one OF more of these ele-
    ments."
Also, in the case of Commissioners~ Court of Limestone
County v. Garrett, 236 S.W. 970, the court, in distln-
guishing an office from an employment, we find the fol-
lowing:
         "'The most important characteristic
    which distinguishes an office from an em-
    ployment or contract Is that the creation
    and conferring of an office involves a
    delegation to the individual of some of the
    sovereign functions of government, to be ex-
    ercised by him for the benefit of the public;
    that some portion of the sovereignty of the
    county, either legislative, executive OP
    judicial, attaches, for the time being, to
    be exercised for the public benefit 0 . 0
    In distinguishing between an office and an
    employment, the fact that the powers in ques-
    tion are created and conferred by law is an
    important criterion. For, though an em-
    ployment may be created by law, It Is not
    necessarily so, but is often, if not usual-
    ly, the creature of contract. A public of-
    fice, on the other hand, is never confer-
    red by contract, but finds Its source and
    llmltatlons In some act or expression of
    the governmental power. 0 0 Public offi-
Eon. Jack Ross, page 9   (V-743)


    cers are usually required by law to take
    the path of office, an8 this fact go44 far
    in determining the character of the duty.
                                          . -_
    Rut the taking of the oath is not an lnals-
    pensable criterion, and the office may exist
    without it, for, as ha8 b88n said, th4 oath.
    IS a mere inoident and constitutes no part
    Of the Office. . . If a duty be a continu-
    ing one, which is'defined by rule6 prescrlb-
    ed by the government, and not by contract,
    which an Individual is appointed by govern-
    ment to perform, who enter4 ,on the duties
    pertaining to his station without any con-
    tract d8finiN them, if those duties Continue
    though the person be changed, it s84ms very,
    difficult to distinguish such a charge or     -
    employment from an office or the person wh&c.
    performs the duties frw an officer. . . At
    the same.timo, hOWeVer, this element of con-
    tinuancs.cannot be conald&ed as IndiSpenSa-
    bl8, for, if the other 418lllentS83e~pr8138nt,
    it can make no diffsrdhC8 *ether there be
    one act or a serba of acts tb be dono, whethi
    8P the Office 8Xpir8S a8 soon as the OIL8act
    is done, or is to be held for years,  or dur-
    ing good behavior.' Mechem on Public Off&-
    C8rS, Sets. 4 to 8.
        "'Public office is the right, authoritf,
    and duty created and conferred by law by
    which, for a glvrn p8riod either fixed by
    law or enduring at the leasure Of the Cr8atr
    lng power, an lndlvlduaP is invested with
    some portion of the sovereign functions of
    the government to be 8XOrCiS4d by him for th4
    benefit of the public.' The correct$i8ssof
    this definition is nOWh8r8 qu88ti~On8&, 80 far
    as we know, and it is useless to add Support-
    ing authorities. Kimbrough v. Barnett, 93
    Tsx. 310, 55 S.W. 122.

         “‘A m8n la not the less a public offi-.
    cer Where his authority is Confined to narrow :
    limits; for It is the duty of his office and
    the nature of that duty which make him an~of?.
    ficer, and not the extent-of his a#thority.'
    Mechem on Public OffiCOrS, Sec. 9.
          In the case of Bigham v. State, 148 S.u.(?d)
Hon. Jack Ross, page 10   (v-743)


835,the Court of CrimlnaL AppeaLs in determiningthat a
deputy supervisor of the 011 and gas department of the
Railroad Commission was an officer had this to say:
          "It was also held that an assistant
     director of the Motor Transport Division
     of the Railroad Commlssion.was either an
     officer or a de facto officer. Again, W8
     think that Art. 6030, supra, providing for
     the appointment of a deputy supervisor and
     prescribing his duties, gives ample grounds
     for a legal inference that such deputy was
     an officer in contemplation of this etat-
     ute. While not a necessary adjunct, never-
     theless the fact that a person receives his
     position by appointment is at least porsw'
     sive 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. That
     one is called a deputy carries with It the
     fact that he is an alter ego for his super-
     ior, being charged with all the duties as
     well as the responsibilities of his super-
     ior, and empowered to perform the acts and
     discharge the duties of such superior, and
     to that extent becoming the superior offi-
     cer himself in his superior's absence, If
     the superior be denominated an officer, tffen
     the deputy would also be such an officer,
          Applying the standards set out in the foregoing
authorities as to whether any public employment amounts
to a public office, w4 find that the assistant or deputy
county auditors %re created under legislative authority,
said assistants or deputies possess a delegation of a
portion of the sovereign power of the government of the
State to be exercised for the benefit of the public. The
duties to be discharged are provided for by law since the
statute provides that the assistant or deputy county audl-
tors are authorized to discharge such duties as may be as-
signed to them by the county auditor and provided for by
lav. The term "provided for by law" moans, of course,
ipwse duties which are imposed upon the county auditor by
   . The employment is continuing in its nature as the
statutes provide that after the list of assistants or de-
puties have been certified to the Commissioners' Court by
the District Judge OP District Judges, said court shall
appropriate out of the general fund an adequate sum to
Hon. Jack Ross, page 11 (V-743)


pay for the performance of such services by ,the.assls-
tRntS or deputies. This amount must be setup .ln the
county budget annnally.
          The Dis,triatJudge or District Judges:glving
consent to the auditor to appoint such asslst,antsor
deputies shall annually have the right to withdraw such
consent. RenC8, we believe such assistants or deputies
are appointed for a year at least unless they be deslg-
nated as temporary assistants, which is not the case,,;
here.

          Further, it will be noted that under hrticle
1650, supra, the assistant or deputy county auditors are
required to take the usual oath of office for faithful
performance of such duty, and may be require8 by the
county auditor to give bond.
           Since those dUti8S~ar4 imposed upon the SSSIS-
tant or deputy county auditors by law and not by con-
tract, and further, since they are required to take the
oath of office for faithful performance of such duties
a8 are required by l.aw,and in view of the fOrego,ing;we
believe the position of assistant or deputy county audi-
tor comes within the definition of an office and Is not
merely an employment. This being true, it IS ouropin-
ion that the same person may not hold the office of.Coun-
ty Tr8Eisur8P end assistant or deputy county auditor ei-
multaneously.
          By virtue of the answers to the foregoing ques-
tions, it is our opinion that question No. 5 should be
answered in the negative.
          With reference to question No. 6, Article 3895,
v. c. s., which deals with compensation for 4x officio
services rendered by county officers is applicable to
fee COLlnti8Sonly.
          Moreover, Article 39124, Section 3, V. C. S.,
provides, in part, as follows:
             "Sec. 3. In all cases where the Con-
        missioners' Court shall have determined
        that county officers or precinct officers
        Fn such county shall be compensated for
        their services,by the payment of an annual
        salary, neither the State of Texas nor any
        county shall be charged with or pay to any
                         :     ,.    i




      ..   ,



                                    Ron. Jack Ross, page 12    (V-743)

..’
               .        .I’.

                                         .'of..the.offlcersso compe,nsated,sny fee or
                                          ~~c~ommlsslon'for
                                                          the performance of any or
                               "           all of the duties of their offices but
                                           such Officers shall r8b8iV4 said salary
                                           in lieu of all~.otherf88S,COmmiSSiOnS or
 :                                         compensation which they~would ttherwise
                                           be authorized to retain; .,O .
                                              Section 61 of Article XVI of the State Consti-
                                    tution Is, in,part, as follows?
,.                 ,.
                                                "All dlstrict~officers in the State'of
                                           TeXaS nnd all county officers in COWIti8S
                                           having a population of 20,000 or more, ac-
                                          ~cord~ingto the then lest precsding Federal
                                           Census, shall.from the first day of January
                                           and thereafter, and subsequent to the first
                                           Regular OP gpecial~gession of 'theLegisla-
                                           ture after the adoption of this Rasolutlon,
                                           be compensated on a salary basis.
               ..                               Ridelgo County has a population of 106,059 ac-
                                    oordlng   to the last Federal Census.
                                              Therefore, in view of the foregoing, the COWI-
                                    ty TreaSurer of Hidalgo County may not be allowed eny 8X
                                    officio compensation. For this reason the necessity of 8.
                                    further discussion of question No. 6 is obviatprd.


                                                There is no authority whereby the coun-
                                           ty auditor may appoint an accountant or cleri-
                                           cal help other than assistant OP deputy coun-
                                           ty auditors.
                                                An assistant or deputy county auditor
                                           duly'app.ointedor so acting is a de fact0
                                           officer even though he has not taken the
                                           oath of office or given bond and may be law-
                                           fully paid out of county funds. 34 Tex, Jur.
                                           614; Uhr v. Brown, 191 S.W. 379..
                                                The same person may not hold the office
                                           of county treasurer end nssistant OP deputy
                                           county auditor simultaneously, Art. 16, Sec.
                                           40, State Constitution.
.   -

        Hon. Jack Ross, page 13   (v-743)



                  The county treasurer in a sal4ry corn-
             ty may not be allowed 8x officio compensa-
             tion by the County Commlssion8rs~ Court. SsC.
             3, Art. 39128; 380, 61 Of &'t. xm, Stat8
                                                                .
             Constitution,
                                            Yours very truly,
                                       ATTORRFIYG~MLOFTEXAS



        BA:mWerc:mw
