The Honorable Byron Tunnel1
Speaker of the House of Representatives
Austin, Texas
                             Opinion No. C-374
                             Re:   Authority of the Speaker to
                                   appoint persons to fill cer-
                                   tain positions in the House
                                   of Representatives; and re-
Dear Mr. Tunnell:                  lated questions.

     Your request for an opinion reads as follows:
            "I request that you advise me of the
      following:
           “1 * Are the following positions Offl-
     cers of the House of Representatives under the
     Constitution and Statutes of the.State of Texas
     and the permanent rules of the House of Represent-
     atives of the Fifty-eighth Legislature?
           a.   Chief Clerk
           b.   Sergeant-at-Arms
           C.   Reading Clerk
           d.   Journal Clerk
           e.   Doorkeeper
           f.   Assistant Reading Clerk
                Calendar Clerk
           i?   Chaplain
           i.   Parliamentarian
            "2 , Would the appointment by the Speaker
      of persons to fill these positions or any of
      them, be in violation of the Constitution or
      Statutes of the State of Texas?
            'I have found no statute creating the
      positions but I enclose herewith a copy of the
      Daily House Journal of the Fifty-eighth Legis-
      lature which reflects the manner this has been
      previously handled."

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Hon. Byron Tunnell, page 2 (C-374)


      In determining whether the positions referred to in your
request are officers or employees of the Rouse of Representa-
tives, we are governed by the principles of law announced in
Aldine Independent School District v. Standley 154 Tex. 547,
z80 S.W.2d 578 (1958 and Dunbar v. Brasoria C&nty    224 S.W.2d
738 (Tex.Civ,App. 19 9, error ref,), distinguishing'an officer
from an employee. The distinction made in the foregoing cases
is stated in the following language:
            "From the above authorities, It is ap-
      parent, we think, that the determining factor
      which distinguishes a public officer from an
      employee is whether any sovereign function of
      the government is conferred upon the individual
      to be exercised by him for the benefit of the
      public largely independent of the control of
      others."
      In the Dunbar case, 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 Supreme Court of Texas
h Id th t an assessor-collector of taxes appointed by the school
dtstric: board of trustees was not an officer. auotina the lan-
i3uageof the Dunbar case referred to above. - *      -
      In Knox v. Johnson, 141 S-W,2d 698   (Tex.Civ,App. 1940,
error ref.), the Court stated:
             1,
                      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 subject 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. @2,
      p2322;     46 C.J. 12, po 922; 22 R.C.L. 82, ps
               The rule deduced by the annotator in 53
      A.L:R. 5959 from numerous cases reviewed in
      determining the status of such a public posi-
      tion, is as follows: 'It may be stated, as a
      general rule deducible from the cases discuss-
      ing 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 concerned,
.




Hon. Byron Tunnell, page 3 (C-374)


      and which also are continuing in their nature
      and not occasional or intermittent; while a
      public employment on the other hand, is a Rosi-
      tion which lacks one or more of the foregoing
      elements."
                                     the Court held that the Superin-
                                              was an officer, stating:
            ,r
                 . He is required to take the consti-
                     .   D
      tutional oath of office, and execute an offi-
      cial bond as is required of other state.offi-
      cers D He is made a custodian of and respon-
      sible for state property and state funds. Hi6
      'term of office' and the salary therefor are
      fixed by law. Definite and specific govern-
      mental duties and powers are imposed upon him
      in which the State as a whole is interested.
      Manifestly, he discharges strictly a govern-
      mental function affecting the public as a
      whole, and clearly is an officer ~of the State."
      Applying the foregoing principles to the positions named
in your request, we note that none of the positions are created
by statute or Constitutional provision. On the contrary, they
are provided for by House resolution. None of the positions
require the taking of an oath of office or the making of an of-
ficial bond. No tenure is provided for any of the positions.
The persons occupying the positions perform no sovereign function
of government independent of the control of others. See H.S.R.
;o,u,;~~of the 58th Legislature, page 2654 et seq. of the House
       .
      Similar resolutions have been passed in prior sessions of
the Legislature. See H.S,R. No. 274 of ,the 51st Legislature, page
4171 et seq. of the House Journal; H.S,R. No. 425 of the 54th
Legislature, page 3534 et seq. of the House Journal; and H.S.R.
;;uVzT of the 55th Legislature, page 2712 et seq. of the House
       .
      In view of the foregoing, you are advised that all of the
positions named in your request are employees of the House rather
than officers, as that term is used in Section 9, Article III of
the Constitution of Texas.
      Section 9 of Article III of the Constitution of Texas pro-
vides in part:
Hon. Byron Tunnell, page 4 (C-374)


              11
               . . . The House of Representatives shall,
        when it first assembles, organize temporarily,
        and thereupon proceed to the election of a
        Speaker from its own members, and each House
        shall choose its other officers."
      Since the positions referred t,oin your request are em-
ployees of the House, you are advised that the appointment by the
Speaker of person6 to.fill these position6 would not be in vio-
lation of any provision,of the Constitution or statutes of this
State. The Speaker's appointive powers, as to such employe~es,
will be dependent upon powers granted to the Speaker by the Muse.

                             SUMMARY
        Appointment by the Speaker, pursuant to authori-
        ty conferred by resolution adopting rules of the
        House, of persons to fill the positions of Chief
        Clerk, Sergeant-at-Arms, Reading Clerk, Journal
        Clerk, Doorkeeper, Assistant Reading Clerk, Calen-
        dar Clerk, Chaplain and Parliamentarian will not
        violate any Constitutional or statutory provision
        of this State.
                            Yours very truly,
                            WAGGONER CARR
                            Attorney General


                                 John Reeves
JR:ms                            Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm L. Quick
Grady Chandler
George Gray
APPROVED FOR TEE ATTORNEY GENERAL
By: Stanton Stone




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