     GERALD     C. MANN
                                      AuwrLN      11. Tp;gas
XXXlXdfX




       Honorable  Charles     R. Martin     Opinion    No. O-4968
       County Auditor
       Harrison  County                     Re:     A member of a Board of Health
       Marshall,  Texas                             appointed in accordance    with
                                                    Article  4435, Revised Civil Stat-
                                                    utes of Texas, who is paid a salary
                                                    by the county, holds a civil office
                                                    of emolument,    and his acceptance
                                                    of the office of deputy constable
                                                    would vacate his office as a mem-
                                                    ber of such Health Board, and re-
       Dear    Sir:                                 lated matters.

                      We have received  yo.ur letter     of recent    date, the material
       parts   of which are set out below:

                      “Under Article  4435, Vernon’s    Civil Statutes the
               Commissioners     Court of any county in which an unincor-
               porated town or village may be situated, shall have power
               to designate the lines of such town or village,      and may ap-
               point a board of health for it, consisting   of three persons,
               two or more of whom shall be regular practicing         physicians.
               In Harrison   County such a board has been appointed consist-
               ing of two physicians  and one enforcement      officer who pa-
               trols the area daily.

                      “Would it be legal for a Constable,   compensated   on a
               fee basis, to appoint as a deputy constable,   the enforcement
               officer for the Health Board, to assist the Constable in mak-
               ing arrests,  etc., but in no manner to interfere  with his duties
               as enforcement    officer for the Health Board, and if it would
               be legal for the deputy to accept such fees as he might earn
               as a deputy constable in addition to his salary as enforcement
               officer for the Health Board and who is paid a salary by the
               county for such services    as a member of the Health Board ?

                      Y. . . . w


                      As we understand    your    question     it may be restated   as set
Honorable   Charles    R. Martin,      page    2 (O-4968)




out in the above   caption.

             Article    4435, Revised         Civil   Statutes,    reads   as follows:

             “The commissioners     court of any county in which an
      unincorporated   town or vill&ge may be situated, shall have
      power to designate the lines of such town or village, and may
      appoint a board of health for it, consisting       of three persons,
      two or more of whom shall be regular          practicing   physicians..
      Said court when such appointments         are made shall at once
      notify the State Health Officer.      Said board shall elect one of
                                          .
      their members    as presiding   officer; and such presiding        offi-
      cer, if the premises   of any citizen residing within the pre-
      scribed limits of said town or village acre in an unclean or un-
      healthy condition, shall notify him of the fact, and that he must
      proceed at once to clean the same.         Acts 1889, p. 139; Acts 1st
      C. S. 1901, p. 29.”

             Section    41), Article    16. of the Texas          Constitution   provides   in
part as follows:

               “No person shall hold or exercise,       at the same time,
      more than one Civil Office of emolument,           except that of Justice
      of Peace, County Commissioner,            Notary Public and Post-
      master,    Officer of the National Guard, the National Guard Re-
      serve, and the Officers      Reserve     Corps of the United States and
      enlisted men of the National Guard, the National Guard Reserve,
      and the Organized      Reserves     of the United States, and retired
      officers   of the United States Army, Navy, and Marine           Corps>
      and retired     warrant   officers,    and retired enli.sted men of the
      United States Army,        Navy, and Marine       Corps,   unless other-
      wise specially     provided, herein      . . D*



              In opinion No. O-830 this department held that a constable is
prohibited  from accepting pay as a grand jury bailiff while retaining his
office as constable.    Such opinion reads in part as follows:

             “It is well established  that a constable is a public officer,
      Murray    v. State, 67 S. W. (2) 274; Tex. Jur. Vol. 34, p. 601; and
      Tex. Jur., Vol. 38, p. 432.

             “Section 40, Article  16 of the Constitution, supra, prohi-
      bits the holding at the same time more than one civil office of
      emolument,    except those offices named therein.’
Honornble     CharIes   R. Martin,   page   3 (O-4968)




              In our opinton No. O-1646 it was held to be immaterial   that
the constables   were compensated   on a fee rather than a salary basis.

            In our opinion No. O-1003 it was held that a constable may
not serve and receive pay as either a city marshal1 or city fireman and
at the same time receive the pay or emoluments    of the office of constable.

             You will note that Article  4435, Revised Civil Statutes,             says
that the commissioners    court may “appoint” a Board of Health.      It           does
not say that the Board shall be “employed”     or “hired”.  In the case             of
Bighan v. State, 148 S.W. (2) 835, the Court of Criminal   Appeals    in           dis-
cussing the question ,of what is a public officer said:

               “‘While not a necessary      adjunct,   nevertheless     the fact that a
       person receives  his position by appointment is at least persuasive
       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.”

                In the case of Knox et al. v'. Johnson,       141 SW.     (2) 698 (writ
of error    refused),  the court said:

               ”
                . . . ‘It may be stated, as a general rule deducible from
       the cases discussing     the question, that a position is a public
       office when it is created by law. with duties cast on the incum-
       bent which involve an exercise       of some portion of the sovereigp
       power and in the performance        of which the public is concerned,
       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.’                  n

               We also call your attention      to the following      statement   from
our opinion    No. o-1003:

              “The acceptance  of and qualification   for the office of city
       marshal1 would, ipso facto, amount to a vacation of the office
       of constable.  Torne v. Hochstetler.    221 S. W. 631.”

             It is. therefore,  our opinion that a member of a board of
health appointed in accordance     with Article   4435, Revised Civil Stat-
utes of Texas, and reaeiving     a salary therefor,   holds an office of emolu-
ment. It is further our opinion that a deputy constable holds an office
of emolument.     Our Constitution prohibits the holding of both such offices
by the same person at the same time.        If the member of the board of
health accepts the office of deputy constable,      he would automatically  vacate
Honorable      Charles     R. Martin,   page   4 (O-4968)




his office as a member of the health board                and would no longer       be entitled
to his salary as a member of such board.

            We note in your letter the phrase “such fees as he might earn
as a deputy constable”.   Deputy constables  are not allowed to retain fees.
Their appointment and amount of compensation      must be authorized by
the commissioners’    court. See Article  3902, Revised  Civil Statutes of Texas.

                Trusting     that the foregoing     fully answers        your inquiry,   we are

                                                  Yours   very   truly

                                   ATTORNEY         GENERAL        OF TEXAS




                                   BY             /s/ Donald Gay
                                                    Donald Gay
                                                    Assistant
DCi:mp:da

APPROVED         DEC     7. 1942



/s/   Gerald    C. Mann

ATTORNEYGENERALOFTEXAS




                                                          APPROVED   OPINION
                                                     COMMITTEE   BY BWB, CHAIRMAN
