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
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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
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