                           TEXAS

                           TRXAS    78711



                           26, 1977



Honorable Wilson E. Speir             Opinion No. H- 1027
Director
Texas Department of Public Safety     Re: Whether commissioned
5805'North Lamar Blvd.                officers of the Department
Austin, Texas 70773                   of Public Safety must take
                                      the constitutional oath of
                                      office, and the effect thereof
                                      on applicants referred by
                                      private employment agents.
Dear Col. Speir:

     You have asked our opinion whether law enforcement of-
ficers commissioned by the Department of Public Safety must
take the oath of office prescribed by article 16, section 1
of the Constitution and, if so, whether the oath may legiti-
mately be taken by an officer who was referred by a private
employment agency and pays that agency a placement fee.
Article 16, section 1 of the Constitution provides in per-
tinent part:

            The Secretary of State, and all other
          appointed officers, before they enter
          upon the duties of their offices, shall
          take the following Oath or Affirmation:

           "I ,       do solemnly swear (or affirm),
         that Iwill'faithfully  execute the duties
         of the office of       of the State of
         Texas, and will to the best of my ability
         preserve, protect, and defend the Consti-
         tution and laws of the United States and
         of this State: and I furthermore solemnly
         swear (or affirm), that I have not directly
         nor indirectly paid, offered, or promised
         to pay, contributed, nor promised to con-
         tribute any money, or valuable thing, or
         promised any public office or employment,
         as a reward to secure my appointment or
         the confirmation thereof. So help me God."




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    Honorable Wilson E. Speir - Page 2    (H-1027)


         Thus, all appointed "officers" are required to take the
    constitutional oath. Rangers and officers commissioned by
    the Director of the Department of Public Safety are speci-
    fically designated as "peace officers" by article 2.12 of the
    Code of Criminal Procedure. Policemen have been described by
    the Supreme Court of Texas as "public officers," Sa
    City of San Antonio, 234 S.W.2d 398, 401 (Tex. 19$?%?
    have also concluded that "a policeman occupies a civil office."
    Letter Advisory No. 63 (1973) at 2. We believe that officers
    commissioned by the Department of Public Safety likewise hold
    a "public office" and a "civil office" and must, therefore,
    take the constitutional oath of office before entering upon
    their duties.  Indeed, officers of the Highway Patrol Division
    of the Department of Public Safety are statutorily required
    to take the oath. V.T.C.S. art. 6701d-11, S 16. - See V.T.C.S.
    art. 4413(12).

         Your second question asks if an applicant who pays a fee
    to an employment agency for an employment referral resulting
    in his appointment as an officer can legitimately take the
    portion of the oath swearing or affirming that he has "not
    directly or indirectly paid, offered, or promised to pay . . .
    any money, or valuable thing . . . as a reward to secure my
    appointment. . . .It You note that the Department has, in its
    efforts to recruit minority applicants, found some applicants
    through private employment agencies.   If the employment agen-
    cy's referral results in employment for its client, the client
    is contractually obligated to pay the agency a fee.

          We note that a private employment agency may "procure
    employment for employees or procures or attempts to procure
    employees for employers. . . .' V.T.C.S. art. 5221a-6, 9
    1 (e). An employment agency may, then, act either as the
    agent for a prospective employee seeking a position or as
    the agent for an employer seeking qualified employees. - See
    Attorney General Opinion H-699 (1975).

         We believe the answer to the second part of your ques-
    tion will necessarily depend upon the role played by an em-
    ployment agency in your appointment of officers.  The consti-
    tutional oath is designed to promote the selection of ap-
    pointees on the basis of merit only, and to assure that no
    officer has ourchased his oosition bv promises of direct or
    indirect reward to those responsible-for his selection.   See
    State ex rel Clement6 v. Humphries, 12 S.W. 99 (Tex. 1889).
    Whether a prospective appointee violates the oath by paying




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    Honorable Wilson E. Speir - Page 3      (R-1027)



    a fee to an employment agency will, therefore, depend upon
    whether the agency is in part responsible for his selection.
    If an employment agency acts as the agent of the Department
    of Public Safety in soliciting, screening or testing appli-
    cants, and is paid by the applicant for an ultimate referral,
    we think it clear that the purpose of the constitutional oath
    would be violated.

         When an employment agency does not act for or on behalf
    of the Department, however, but merely acts as the agent of
    an applicant by notifying him of employment opportunities,
       do not believe the fee paid the agency in such a case would
    E a direct or indirect reward to secure appointment within
    the prohibition of article 16, section 1 of the Constitution.
    The fee paid the agency in such a situation is not paid to
    the Department or any private individual responsible for the
    officer's appointment.  So long as the employment agency plays
    no role in the Department's process of selecting new officers,
    payment of a normal referral fee to an employment agency is
    not the type of evil the Constitution seeks to prevent.

                              SUMMARY

                Commissioned law enforcement officers of the
                Department of Public Safety are "appointed
                officers" required to take the oath of office
                prescribed by article 16, section 1 of the
                Texas Constitution.  Whether a fee paid by
                a prospective appointee to a private employ-
                ment agency constitutes a reward paid to
                secure the appointment depends upon whether
                the employment agency plays any role in the
                Department's process of Selecting new Of-
                ficers.
                                   Xery   truly yours,




    APPROVED:                I/




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Honorable Wilson E. Speir - Page 4    (1.~~1027)




E. ROBERT HEATH, Chairman
Opinion Committee

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