Honorable Cullen B. Vance
County Attorney
Jackson County
Edna, Texas
Dear Sir:               Opinion No. O-6088
                        Re: Whether a deputy county treasurer
                             may also serve as a rent control
                             insaector for the Office of Price
                             Administration...
        Your opinion request of June 27, 1944, reads as fol-
lows:
       "The Deputy County Treasurer here, who has
   been in charge of the Treasurer's Office, in the
   absence of the regular County Treasurer, who is
   in Military service, has recently been appointed
   Rent Control Inspector for the Office of Price
   Administration for Jackson and Calhoun Counties.
       "It was suggested by the Commissioners' Court
   that he continue to perform the duties of Deputy
   County Treasurer along with the duties of his posi-
   tion as Rent Control Inspector, and so far as I know,
   there is no objection by anyone here to his continu-
   ing in both capacities.
       "As Deputy County Treasurer he receives a
   salary of $100.00 per month, ipaiddirectly by the
   County, but deducted from th Treasurer's salary
   who receives $125.00 per month.
                               4    His salary as
   Rent Control Inspector will be paid by the Fed-
   eral Government, and will approximate $200.00 per
   month.
       "The Office of Price Administration has no
   objection to his continuing in both capacities.
       "I would like an opinion from your depart-
   ment as to whether there is any legal prohibition
   that would prevent him from continuing to act as
   Deputy County Treasurer while serving as Rent
   Control Inspector."
Hon. Cullen B. Vance, page 2         o-6088


        With certain,exceptions not here material, Section 40
of Article XVI of the Texas Constituion provides:
        "No person shall hold or exercise, at the
    same time, mvre than one civil office of emolu-
    ment . . . .'
        Similarly, Section 12 of the same Article provides:
        "No member of Congress, nor person holding
    or exercising any office of profit or trust,
    under the United States, or either of them, or
    under any foreign pover, shall be eligible as a
    member of the Legislature, or hold or exercise
    any office of profit or trust under this State."
        It is settled that deputy sheriffs and deputy county
clerks are public officers of this State. Donges v. Beall, et
al., 41 S.W. (2d) 531; State v. Brooks, 42 Tex. 62; Townes
v. Harris, 13 Tex. 507; Murray v. State, 67 S.W. (2d) 274. .
This office has previously held in Opinion No. O-4968 that a
deputy constable likewise is a public officer of the State.
By a parity of reasoning and after consideration of Article
3902, V.A.C.S., the Article under which deputy county treasur-
ers are appointed, we feel that a deputy county treasurer is
also a public officer, and that he holds a "civil office of
emolument" and an "office of profit or trust under this State.”
        From the local Office of Price Administration we have
obtained the following information relative to O.P.A. Rent
Control Inspectors:
        Such Inspectors are appointed under the pro-
    vi~sionsof the Emergency Price Control Act and the
    executive and administrative orders issued there-
    under. The Inspectors form a part of the general
    scheme of inflation control by the federal govern-
    ment, and function in this respect by seeing that
    rent ceilings are obeyed, by valuing property so
    that proper ceilings may be established or that
    proper changes may be made in existing ceilings,
    and by enforcing the other provisions of the rent
    control regulations. Rent Control Inspectors are
    req,uiredto take an oath before entering upon the
    performance of their duties.
        This Opinion is expressly predicated upon the assump-
tion that the foregoing information is correct.
        In the case of Commissioners1 Court of   Limestone   County
Hon. Cullen B. Vance, page 3          O-6088


v. Garrett, 236 S.W. 970, our Commission of Appeals defined
a "public officer" in the following terms:
        "Public officers are usually required by law
    to take the oath of office, and this fact goes far
    in determining the character of the duty. Sut the
    taking of the oath is not an indispensable criterion,
    and the office may exist without it, for, es has
    been said, the oath is a mere incident, and constl-
    tutes no part of the office . . . If a duty be a
    continuing one, which is defined by rules prescribed
    by the government, and not by contract, which an in-
    dividual is appointed by the government to perform,
    who enters on the duties pertaining to his station
    without any contract defining them, if those duties
    continue though the person be changed, it seems very
    difficult to distinguish such a charge or employment
    from an office or the person who performs the duties
    from an officer."
         In the case of Kimbrough v. Barnett, 93 Tex. 310, 55
S.W.   122, our Supreme Court said:
        "Public office is the right, authority, and
    duty created and conferred by law by which, for
    a given period either fixed by law or enduring at
    the pleasure of the creating power, an individual
    is invested with some portion of the sovereign
    functions of the government to be exercised by
    him for the benefit of the public."
        We feel that the position of 0. P. A. Rent Control In-
spector falls within these definitions?,and that such Inspec-
tor holds a "civil office of emolument and an "office of pro-
fit or trust under the United States" within the meaning of
the above quoted provisions of our Constitution. Consequently,
you are respectfully advised that under these provisions a
deputy county treasurer may not also serve as an O.P.A. Rent
Control Inspector.
        In a situation such as the present in which neither the
Commissioners' Court nor the Office of Price Administration
has any objection to the holding of the two offices, the Con-
stitutional prohibitions doubtless seem unduly severe. However,
as was said in our Opinion No. O-490:
       "The restraint against a person exercising
   or holding more than one civil office of emolument
   might appear to be a manifestation of a super-
   abundance of caution on the part of the framers
Hon. Cullen B. Vance, page 4          o-6088


    of the constitution, where the offices are not of
    major importance, or of high financial remuneration,
    as is the present case. On the other hand, said
    prohibition can amount to a protection of fundamental
    rights and liberties, and a bulwark of democratic insti-
    tutions and principles. Consequently, regardless
    of the personalities, offices and compensation in-
    volved, the constitutional mandate must be strictly
    obeyed."
         Trusting that the foregoing fully answers your inquiry,
we are
                                Yours very truly
                               ATTORNEY GENERAL OF TEXAS

                                By s/R. Dean Woorhead
                                     R. Dean Moorhead
                                     Assistant
RDM:fo:wc

APPROVED JULY 13, 1944
s/Gee. P. Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion'Committee By s/BWB Chairman
