                                                                    -   R-698

                                                                                389
                                        OF’FICE          OF

                 _     THE ATTORNEY                       GE~RAL
                                      AUSTIN. TEXAS
PRICEDANIEL
*IMRYiEY GqieRAL
                                     September 8, 1947

          Hon. C. H. Cavness               Opinion No. V-371
          State Auditor
          Capitol Station                  Re:.   The legality,of    a state
          Austin, Texas                           employee's~reoeiving     and
                                                  uslngthe    jury fee.ror
                                                  serving as a. juror while,
                                                  on state payroll.
          Dear Sir:
                        Your request for an opinion           upon the above sub-
      .   ject     matter is as .rouows:
                        ., "1 shall great-ly'appreciate     your
                   opinion as to whether it is .legal; un-
                   aer our Constitution      ana Statutes;    r0r
                   a S'tate employee to receive,        and use
                   the proceeds of, rees for'serv$ng         as a
                   juror in the District      or CountyICourts
                   oi'the State while he is also drawing
                   pay on some State payroll.
                         Tt appears there is considerable
                   confusion on this matter.     We rind that
                   some'departments are holding that a State
                   employee should not accept a jury fee,
                   others ask them to tarn any such fees they
                   have received into the State Treasury, and
                   still  others permit them to accept and
                   keep such fees.    In all this of' course
                   it is assumed that the employee is given
                   a temporary leave of absenoe without de-
                   duction in his State pay for such time as
                   he.nhay be'serving  on jury duty.*
                    Your question involves Sections 33 ana 40 of Ar-
          ticle XVI of the Texas Constitution,    and Section 2 (14)o
          of the CurrentDepartmental Appropriation     Bill,   being S.B.
          391, Chapter 400, Acts Fiftieth   Legislature,     R. S..1947.
                     Section 40 of Article          ¶I    of the Texas Constitu-
          tion. reads in part as follows:
                                                                                    -   .




    Hon. 0. H. Cavness,               Page 2, V-371


                 “No person shall hold or exerolse,    at
            the same time, more than one civil  office    of
            emolument, except . . - .*
                    Section       33 of this    same Article       reads in part
    as   follows:

                   “The accounting ofrioers    or this State
            shall   neither draw nor pay a warrant upon the
            Treasury    in favor of any person, for.salary.or
            compensation as agent,     orricer  or appointee,
            ~whoholds at the same time any other office        or
            position of honor, trust orprofit,        under this
            State or the United States, except as presarib-
            ed iii this Constitution.*
                Section 2 (14)~ S.B. 391, Chapter 4WJ Aots of
    the Ffrtfeth   Legislature reads as follows:
                  “Salary p yments . No salary for which an
            aooronrlatlon  Ts mada herein shall be Paid to
            ayy p&son unless auoh person actually-disaharg-
            es assigned auties.R
i
                This Department held in Opinion No. 0-6185 that
    the County Treasurer was not authorized to aeduot from
    the. regular oompensation .oi County employees the amount
    paid to such employees for jury servloe while serving on
    a petit jury.     In a letter opinions-dated May 20, 1938,
    addressed to Honorable W. Pat Camp, Assistant      Criminal
    District   Attorney, San. Antonio, Texas, and signed by R.E.
    Gray, Assistant Atto~rney GaneraL, It was held’ that a Dep-
    uty Tax Assessor-Collector    was. entitled  to reaelve and
    use his pay r0.T serviaes~‘,while serving as a grand    juror.
                   Artic1.e 16, Se&ion            19, of the Texas Constitu-
    tion,     provides in part:
                 “The Legislature    shall presoribe                by-la;
            the qualiiiaatfons    of grand and petit                j~rors.~



             servioe      except      the following    persons:
                    .“.   .   .   .

                     =2;~-dwawt1            0rri0em-   0r   this   State     and
             of the United,States.”            See also     A’rt.616;      C.C.P.
.   -

        Eon. C. H. Cavness,           Page:3,,   V-371


                  ~ Ithas  been held.many times that officers    or
        'employees of.the State. or .County are qualified   to serve
        as grand or petit jurors-.    Edgar vs.~State,   Crim. App.,
        127.S.W. 1053; Mingo vs. State, Crim. App.,, 133 S.W. 882;
        Counts vs. Statej.Crim.   App.; 181.S,W;723.
                        ~-The holding     0r   civio   office   is   growa    ror
                  exempting':e    juror    on hisapplication,     but it is
                  not.ground     .of~challenge."     26 Tex..Jur.   744.
                    :I$ has been hela'that    neither a grand-juror nor
        a .petit juror holds.an "office?      wlthin~the meaning of the
        constitutional    and statutory    provisions  prohibiting the
        holding of:two offices.,      State vs..Graham, 79 S.C. 116,
        6O.S.E..431;    Territory  vsi Hopt, 3 Utah 396, 4 P. 250,255.
                         In the latter     case the court       said:
                        "IniT. US. v.~ Hartwell,;     Wall. 393, the court
                  say:. :tAn offiae   isa   publicstation    or employment,
                  conferred.by    the appointments of government.    The
                  term,embraOesthe     ideas .of tenure,, duration, em-
                  ployment,~ and.dutie~5.Y
                         "M. Bouvier, in his dictionary,     defines
                  offi~&e:to be' 'aright  to .exerciss    a public iunc-            '
                  tionor    employment, anL-to mhe .the rees~ana
                  ~emoluments .belonging to it..*    .i 2
                   :    "'The idea c&an of&e        :clearly defined
                  embraces the i,deas of:.tenure::duration,     fees ear.
                  emoluments, rights and powers, as well as that
                  of tduty; a public employment'confirmed      by ap-
        :,.       pointmentor   government.!     Burrill,    Law Diet.
              :
                         YIn~20 Johns. ~493, Platt defines orrice to
                  be 'an employment on behalf of the government in
                  any station     or public trust, notmerely  trans-
                  ient ., .ocoasional,  or incidental.'-
                        "An office   is derined.to be 'a right               to
                  exercise   a public function or employment,                and
                  to take .the fees and emoluments belonging                 to
                  it.'.  Streeter   v. Rush, 25 Calm. 98; People              v.
                  Stratton,   28 Cal. 388.
                        "Jury duty :is In the nature of service
                  due from the,.ci,tizen to the government, neces-
                  sarily required in then admlnistration~ or its laws.
                                                                               -       .




      Hon. C. H. Cavness,       Page 4,, V-371


               Its character has but little       similarity     to tenure,
               duration,   power, and the right to exercise          powers
               conferred by.the appointment of government, which
               are essential   characteristics     of office,     'and not
              mere transient,     occasional,   ,or incidental.'       The
               name of the man Is selected,       and, with 199 others,
               is placed in a box which is denominated the jury-
               box, from which it is drawn by chance; and, wlth-
               out his knowledge of any previous steps, he is sum-
               moned to appear in court to perform the duty of a
               juror.    It is true, he has a duty of a public na-
               ture to perform, and for it he Is compensated out
               of the public treasury;      but in what other respect
               does his position     or his duties correspond with
               the essential   elements of office?        He has no cer-
               tain term of office.      He has no right to, and has
               no power to enforce a right to, the performance
..-            of any act or service which constitutes           the per-
               foxmance of official     duty.    He is liable at any mo-
               ment to be discharged by the court from all ser-
               vice; and to be excused by either party from serv-
               ing in the trial of any cause without consulting
               his wishes or interests.        The oath he takes, in
               its terms land scope, limits his.duty, to the facts                 1
               of the particular     case then on trial,      ana is not
               the oath required by the laws of this territory,
               or by the constitution      and laws of the United
               States,   to be taken by public officers.          State v.
               Bradley, 48 Corm. 535. The position           of a jury-
               man is, to a certain extent, a 'place of public
              .trust and emolument,' but not in the sense of
               these statutory    provisions.*
                We accordingly-hold  that a juror does not holds
      a "civil office  of emolument" within the meaning of Sec-
      tion 40, of Article  XVI, of the Texas Constitution.
                The next inquiry is whether a person while ser-
      ving as a juror holds a wposition of honor, trust or prof-
      it, under this State,v within the meaning of Sec. 33 of
      Art; XVI, Texas Constitution.
                   Words and Phrases,
                               - __     Vol.     33,   pages 51'and   53 ae-
      fines    a upOsltion~ as rollows:
                    :A 'position'    is analogous to an *orri&ef,
               in that the duties    that pertain to it are ,.l?q-
              manent. and certain,     but 'it differs froman~o fiae
              ‘in thatits   duties   may be nongovernmentar'and
    Hon. C. H. Cavness,    Page 5, V-371                                  393


         not.assigned   tomitby.:any, public law of the
         ~state.,~ An 'employment' is differentiated.from
         both an offioe   and a position,     in that its
         duties,   which are nongovernmental;- are neither
       : oertain nor permanent.      %oard.of-Education   of
          City. of Bayonne v.:,Bidgood,~Sup.~,   168 A 162,163,
          11 N.J.~Misc.  735.,. ,.
                RA position    isanalogodsto      an:ofrice,:in           "
         that.the duties that.pertaln         to it are
         and certain,    ,and it.airrers     from an off 3!=?=
                                                            ce  n
         that itsduties      may:be~nongovernmental;ana               "
         notassigned      to itby    public law.. Prederioks
        .v.'Boardof     Health,of    Town of rPest Hoboken;          ..
         82 A. 528; 529,,.82 NJL. 200.".             .'~
               In Johnston.v.  Chambers, (Ga) 98 SiE. 263 (1919)
    the police commissionerof~the    City of Atlanta by then
    name of Chambers was a member of a local draft board at
    the time-of his electionand    induction into office.  The
    charter,of  the City of Atlanta provided:'
                "It shall be,unlawful,for       any person hold-
         ing,an orrioe or positian-of      trust, ;,emolument,
         or-regular    employment nnder.anoointmentbv         then
1      .:President..of   the-United State;‘;'..,.     . to-oc-                .'
         oupy or hold any other offlce'or.position          of
         trust, honor, or emoltunent or regular employ-
         ment in or under the city government . . mn
    Suit was for mandamus to have Chambers declared ineligi-
    ble for the office  of police commissioner.    Itwas  hela~
    that membership on the local draftboard     was not a "PO-                     .’



    sition of trust" wi,thin the meaning of the language of
    the Atlanta.Charter  above quoted.  The.Supreme Court of
    Georgia said:
                "The. dutieswhioh    these boards were called.
         'upon.t.0 perform were of the.most .exalted character,
         but-.they were as transitory      and ephemeral as they
         were exalted;     and it was the duty of any citizen
          called to membership upon one of these boards whe-
          ther a private citizen     or the holder of any orrice,
          to lay aside all other duties for the hour and re-
          spond to the call.      The court below properly denied
          the applicationin.
               In Reading v. ,?daxwell, 52 P. (2d) 1155, the Su-
    preme,Court of: Arizona.~held that a person holding appoint-
    ment as clerk in the Phoenix Water Department did not
    thereby hold a' "position"   within the meaning of the term
                                                                              -



3%    Hon. C. H. Cavness,     Page 6, V-371


      as used in an.,ordlnance     classifying    employees under Civ-
      11 Service.
                  In Opinion No. O-2798, this office       held that
      the Criminal District     Attorney for Ellis County, Texas
      was entitled   'to be paid by the State for professional
      services   rendered the State in a civil      case in which the
      State was sued as a defendant.        The Criminal District
      Attorney came into the civil      case at the request of the
      Attorney General but he was not an Assistant Attorney
      General.    The case involved the liability       of the State
      for damages in the construction       of a highway and was not
      one the Criminal Districts Attorney was called uponto de-
      fend.    As an attorney in the case the Criminal District
      Attorney was "an officer      of the court" but the opinion
      held that Section 33, Article      XVI of the Constitution
      did not prevent the accounting officers        Or this   State
      from, paying the Criminal District      Attorney for services
      rendered the State in the civil       suit.
                   In Opinion No. O-4313 this office    held that a
       member of the State B~oard of Education could also serve.
       as a member.of an Alien Enemy Hearing Board.       In holding
     ,that membership.on an Alien Enemy Hearing Board 'was not
       a vpositionv   within the meaning of that term as used in
     .Se&ion     33; o,f Article XVI, Texas Constitution,   the then
       Attorney General said:
                   "The term 'position'     implies,    among others,
            stability,     compensation,   duration.     The absence,
            or relative     absence, of these essentials,        apper-
           tainlngto       membership upon an Alien Enemy Hear-
            ing Boald,...is manifest from our review of its
            origin;    status and oharacter.       Pa*icularly     con-
            trolling    are these facts:     membership uponthe
            Board is entirely      temporary; its members are
            engaged in the doing of an emergency service for
            the Government in time of war; the services            per-
            formed are essentially       desultory,    sporadic,   oo-
            caslonal;    no oompensatioa is paid and 'there is
            an absence of permanency and continuity            in the
            Board ltself.n
                   The same observations      are applicable   to jury
      service.     It isa     duty of citizenship   ratherthan    a vpo-
      sition"   freely chosen.      Service as a juror totally     lacks
      the elements of permanency and continuity          which are es-
      sential.characteristics       or an norrice   or positionn as
      those terms are used in Section 33, of Artiole           16, Texas.


                                                                          .
Hon. C. H. Cavness,   Page 7, V-371


Constitution.  We accordingly  .hold that it is legal
for a State employee to receive and use the fees re-
ceived for doing jury service.
           Whether a States employee can be paid his sal-
ary for time spent serving as a juror is a ract question
which must be determined primarily by the Head of the
Department in which such employee works.    Your question
,assumed that *the employee is given a temporary leave of
absence without deduction in his State pay for such time
as he may~be serving on jury duty".    We accordingly   as-
sume that the Head of the Department in which such em-
ployee works found such person had actually    discharged
his assigned duties.    Otherwise, his leave of absence
should be without pay.
                          SUb%dARY
           A State employee may receive and use fees
     received by him for jury service without any
     deductions in his State pay, if such person al-
     so discharges  the duties assigned to him by the
     Head of the Department fin which he works.    If
     not, leave of absence should be granted without
     pay during such jury service.     Sec. 33 and 40,
    hart XVI, Texas Constitution;   Sec. 2114)~ Ch. ,400
     S. B. 391, Acts 50th Legislature,     1947.
                                      Yours very truly
                                 AlTOFNF8YGEWERAL
                                               OFTEXAS


                                 Byyy*
                                         F gan Dickson
                                         First Assistant




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