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             THE    A’PFO     NEY       GENERAL
                        OF-XAS




Honorable W. C. Lindsey             Opinion No.   C-386
Criminal District Attorney
Jefferson County                    Re:   Constitutionality of
Beaumont, Texas                           Article 5142, Vernon's
                                          Civil Statutes.
Dear Mr. Lindsey:
       You have requested our opinion on the validity of that
portion of Article 5142, Vernon's Civil Statutes, authorizing
the selection as juvenile officer 'any school attendance of-
ficer or officers of the county, or of school districts in the
county.'
        Article 5142, Vernon's Civil Statutes, provides in part:
             " . . s
             "In the appointment of all juvenile officers,
        the county judge and the County Juvenile Board may
        select for such office any school attendance officer
        or officers of the county, or of school districts in
        the county, that may be authorized by law, and the
        salary and expense of such jo:nt juvenile officer or
        officers and attendance officers shall be paid jointly
        by the county and school authorities upon any basis
        of divisfon they may agree upon." (Emphasis added)
       Section 40 of Article XVI of the Constitution of Texas pro-
vides in part:
             "No person shall hold or exercise, at the same
        time, more than one Civil Office of emolument, ex-
        cept . s 0' (Exception not applicable),
       The distinction made between an officer and an employee is
stated in Aldine Independent School District v. Standley, 154 Tex.
547, 280 S.W.2d 57% (1956), and Dunbar v, Brazoria County, 224
S,W.2d~738 (Te~.Ci~,ftpp, 1949,error ref.), as follows:
             "From the above authorities, it is apparent,
        we think, that the.determining factor which dis-
        tinguishes a public officer from an employee is

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Hon. W. C. Lindsey, page 2 (C-386)


       whether any sovereign function of the govern-
       ment is conferred upon the Individual to be
       exercised by him for the benefit of the public
       largely independent of the control of others."
       In Dunbar v. Brazorla County, supra, the Court held that a
county road engineer was not an officer under the provisions of
Section 24 of Article V of the Constitution of Texas. In Aldine
Independent School District v. Standley, supra, the Supremmt
of Texas held th t an assessor-collector of taxes appointed by
the school distr&t board of trustees was not an officer, quoting
the language of the Dunbar case referred to above.
       In Knox v. Johnson, 141 S.W.2d 698 (Tex.Civ.App. 1940, error
ref.), the Court stated:
            I,
              .  . . Much has been written on whether the
       occupant of a public position Is a public officer
       as contradistinguished from a public employee. The
       best and most comprehensive discussion of this sub-
       ject that we have found is contained in State of
       Montana ex rel. Barney v. Hawkins, 79 Mont. 506, 257
       P.411, 53 A.L.R. 583-595, wherein decisions from
       many states are cited and reviewed. See, also, 34
       Tex.Jur. B2, p,322;   46 C.J. 992,p.922; 22 R.C.L.
       82, p-372.    The rule deduced by the annotator in 53
       A.L.R. 595, from numerous cases reviewed in deter-
       mining the status of such a public position, is as
       follows: 'It may be stated, as a general rule deducf-
       ble from the cases discussing the question, that a
       position is a public office when it is created by
       law, with duties cast on the incumbent which involve
       an exercise of some portion of the sovereign power
       and in the performance of which the public is con-
       cerned, and which also are continuing in their
       nature and not occasional or intermittent; while a
       public employment on the other hand, is a position
       which lacks one or more of the foregoing elements.'"
       In Knox v. Johnson9 supra, the Court held that the Superin-
tendent of the San Antonio State Hospital was an officer, stating;
            11
                 D He is required to take the constitu-
                     .   0


       tional oath of office, and execute an official bond
       as is required of other state officers. He is made
       a custodian of and responsible for state property
       and state funds. His 'term of office' and the
       salary therefor are fixed'by law. Definite and
       specific governmental duties and powers are imposed

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Hon. w. c. Lindsey, page 3 (c-386)


        upon him in which the State as a whole is in-
        terested. Manifestly, he discharges strictly
        a governmental function affecting the public
        as a whole, and clearly is an officer of the
        State."
       Article 5142, Vernon's Civil Statutes, provides that the
juvenile officer created by its provisions shall serve for a
term not to exceed two years from the date of the appointment; re-
quires the juvenile officer to take an oath of office and to file
such oath of office in the office of the county clerk; prescribes
the duties of the juvenile officer, which he exercises by virtue
of holding the office; provides for the removal from office by
the power appointing him.
       Applying the principles announced in the foregoing cases
to the duties of juvenile officers prescribed in Article 5142,
Vernon's Civil Statutes, it is our opinion that the juvenile of-
ficer is an officer within the meaning of Section 40 of Article
XVI of the Constitution of Texas.
       It is noted that under the express provisions of Article
5142, the juvenile officer may be "any officer of the county or
any officer of a school district in the county." Therefore, the
provisions of Article 5142 specifically provide for dual office
holding in violation of the provisions of Section 40 of Article
XVI of the Constitution of Texas. You are, therefore, advised
that the provisions of Article 5142, authorizing the selection
for the office of juvenile officer "any officers of the county or
of school districts in the county" is unconstitutional, being in
violation of the provisions of Section 40 of Article XVI of the
Constitution of Texas. However, you state that the Juvenile Board
of Jefferson County has appointed as juvenile officers two men who
are employed on a contractual basis by the Port Arthur Independent
School District as truant officers. Under the submitted facts, as
the persons selected as truant officers are merely employees,'
they can be appointed juvenile officers as two civil offices are
not involved.

                           SUJ4MARY
             The provisions of Article 5142, authorizing
        the selection for the office of juvenile officer
        "any officers of the county, or of school districts
        in the county" is unconstitutional, being in vio-
        lation of the provisions of Section 40 of Article
        XVI of the Constitution of Texas. However, an


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Hon. W. C. Lindsey, page 4 (C-386)


      employee of a school district may be appointed
      as a juvenile officer.
                             Yours very truly,
                             WAGGONER CARR
                             Attorney General



                                    Assistant
JR:cg:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Norris
Pat Bailey
Jack Goodman
Roy Johnson
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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