Untitled Texas Attorney General Opinion

EKE YGENERAL Hon. Clarence L. 'Darter Ooinion - NO: d-627 County Attorney Childress~County Rer Whether a constable may Childress,'Texas act as a deputy tax assessor-collector for one day in a poll tax drive put on by the Dear Mr. Darter: Jaycees. In view of the provisions of Section 40 of Article XVI of the Constitution of Texas, you have requested our :opinion as to whether an individual vacated his office of constable upon the acceptance of the position of deputy tax 'assessor-collector for only one day in a poll tax drive put on by the Jayce.es. You state in your request that the consta- ble'accepted this position along with other'Jaycees,in the community as a civic project, receiving as compensation'the sum of,$1.00. Section 40 of Article XVI of the Constitution of Texas provides: "Ro person shall hold or exercise, at the same time, more than one civil office of emolument, except . . .' (Rxc'eptionsnot applicable) In Attorney General's Opinion O-4313 (lg42), in deter- mining whether membe.rshipupon an Alien Enemy Hearing Board constituted a civil office of emolument within the meanina of Section 40 of Article XVI of the Constitution of Texas, tEis office applied the .rule,announcedin Barney v. Hawkins, 79 Mont. 506, 257 P. 411 (1927), 53 A.L.R. 583. The Court's analy- sis of the authorities‘uRon.the questionsof what constitutes an office is stated in Barney v. Hawkins, supra, as follows: "After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employ- ment, in order to make it a public office of a civil nature2 (1) It must be created by the Constitution or by the Legislature or created by a municipality or other body throu author- ity conferred by the Legislature; it mrist -3042- Hon. Clarence L. Darter, page 2 (C-627) possess a delegation of a portion of the sover- eign power of government, to be exercised for the benefit of the public; (3) the’powers con- ferred, and the duties to be discharged, must be defined, directly or impliedly, by the legis- lature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; must have some permanency and continuit ,, p&i not be only temporary or occasional. (Emphasis added) Applying the above-quoted analysis to the facts stated in your request, it is our opinion that the constable in ques- tion did not accept another civil office of emolument. There was’no permanency or continuity involved, by the acceptance of the position of deputy tax assessor-collector for one day, in the poll~tax drive by the Jaycees. Therefore, you are advised that the constable in ques- tion did not vacate his office of constable. SUMMARY A person holding the office of constable did not vacate such office by the acceptance of the position of deputy tax assessor-collector for one day in a poll tax drive put on by the Jaycees of a community. Yours very truly, WAGGORER CARR Attorney General Assistant -3043- Hon. Clarence L. Darter, page 3 (c-627) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Banks Ben Rarrison Linward Shivers Howard Fender APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright -3044-