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."
P. 4240
, .
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
P. 4241
. .
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/
p. 4242
Honorable Wilson E. Speir - Page 4 (1.~~1027)
E. ROBERT HEATH, Chairman
Opinion Committee
klw
p. 4243