         OFFICE        OF THE   AlTORNEY     GENERAL   OF TEXAk
                                    AUSTIN
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   Honorable Edvln Lsc~, Comml~~l~ne~
   apartment  of Publlo Safety
   Austin,    Tsxaa

   Dear s1ri




                             f the Leglslatime,   and all officera,
                             cr u>on   the duties Of' their Ofilooa,
         ahall      take the follovlng   Oath or afS.lrnatlont

                 ‘I,                 do solemly    wear (or
         affirm),  that f vi11 Pafihfully   execute the duties
         of the office  of                   of ths State of
         Texas, and will to tha beet of ny aSlUty      p-escrve,
        gonorable   Edwin Lac9, Comlrrionec,     rage 2
.


             protest,   and derend the Oon~tltutlon and Law8
             of the Dnlted States and of thlr State;       and
             1 rwth0m0re solemn19 avear (or arrirm), that
             ‘I have not dlreotly   nor indirectly   paid, otfered,
             or promised to pap, contributed,      nor protised
             to contribute   an9 money, or valuable thing, or
             promised any pub110 offioe     or employment, aa a
             revard for the glvlng or rithholdlng      a votu at
             the election   at vhloh I va8 eleotod.    30 he12 ne
             Wd.*
                    St vi11 be. observed that’the    oath haa rebtlon      only
        to bribery of elebtors     “at the eleatlon”    at Milch the otfloer
        vas elected.    The oath does not have reference       to nominations.
        So that a county oommlsslonor vho vilfully        exercisea  his
        paver to employ FersOn8 to vork ur,on the roads of the county,
        to employ persons not peeded in such vork in oonaldoration           of
        their votlrg for his nomlx!atlon at a primary election        doer not
        Oonstltuto a violation     of the Constitutional     oath of ofrlce
        80 ad to subject     him to removal from the office     in the event
        he should be elected     thereto at the genePa electlsn.        iie nag
        be punlshod under the provisions      of Fecal Code, Artlale      196,
        for oorruptlg    using his authorit    or iFfluonce,    but ruch punish-
        ment does not carry a disquaUrioatlon        for election   to the of-
        flee to vblch he haa been nominated;
                    In this oonneotlon, It mat be rouembored that the
        Legislature   has seen fit to provide that “No offloer  in this
        State shall be’removod from,office    for any aot he ma9 have
        Oommittod prior to hla election    t0 OffiCe.”  Article 5986ir PII
        Wnded Act6 1939, 46th Leg., House Bill 493, Seotlon 1.

                   A oomals~lonor, then,’ canmt be removed from hla
        Offloe durips the seoond term to which he ma9 have been elected
        for an aot vhloh he has committed dwlng his first    tomn in
        ruoh of ri0e.
    !               In ansvor   to your third question,     you are advised that
        a County comlesio~er       vho vilfully  exerolsos   hle power to
        employ persons to work upon the roads of the county         to engage
        the services    of parsota not needed in euoh uork for the ~‘urpoae
        or rurthor:ng hia $?ersor?al polltlcal      ambition la t?ot guilty
        or m,lsapplication    of publio funds, as that ofienae Is deflrod
    t   by the I/~~:l~laiurs.     In t;?~ 003~ Of’ ~~~~r.~S
                                                          V3. StCbtO, l’j3 3. k?.
        (26) 105, the Court of Criuitisl Appeals hold that a oount9

                                                                   ,
Eonorable       Edvln Leoy,   ComrPimaioner,    Page 3


oommlasloner vho rlled     a flotitlow      account and eeoured ad
oarhed  a varrant and gave a portion        of the prooeodr in exoeea
of payment due on an auto to the seller         of the auto oould not
be oonvloted   of misapplloatlon      of pub110 fur?de, in the abeenoe
of evidence th%t the money involved vab ln the hands of the
ooumlssiomr    in his offlolal     oapaoltp,   holding that county
oommlseloners are not by virtue of their offloo          custodians o?
oounty funda.
           With respect to your fourth and laat quertion,   ~rou
are advised that in the cplnlon of th1.s dspartzeent the vl’ong-
rui employment or vropgrul  approval or .acoounts against the
oounty for aervlcos rendered by anaJployeo unnecessarily    hired
to vork upon tho I;ubllc roads doe8 not constitute  a thoft of
oounty furds by false pretext. As stated by the Supreme Court
or Texas in the case or State vs. ‘Klcgsbury, 37 !&IX. 159:
'There is no vrltten lav of this Stato oxpresely defining the
act of the county co.Ut in wlavfully   epiwovlng an account against
the county as a penal orrenao.”
                                               Yours very truly
                                        AWORm       G~itSRAL OF TEXAS




                                                Riohard Ii. Fairchild
                                                            Assistant


            I




                   APPROVEDDEC 5, 1940


                   ATTORNEY GEXERAL bF TZXAS
