A.rrOH?sacYGENERAI.
Ron. Dan W. Jackson
Criminal District Attorney
Houston, Texas
Dear Sir: gttentlon: Palmer Hutcheson, Jr.
Opinion NO. 0-2056
Re: Elections - Judges, Clerks and
Supervisors - Article 2940, Revised
Clv~i.1 Statutes.
Your request for opinion upon the following questions:
"1. Are school teachers, school trustees,
officers and employees of the various school
systems and~dlstricts; employees and officers of
the ,various drainage districts and other employees
paid by tax money but not specially~llsted in
Rrticle'2940, disqualified as judges, clerks or,
supervisors of elections?
l12." If so, is such disqualification mandatory
or directory?" ~
has been received and carefully considered by this department.
Article 2940, Revised Civil Statutes of Texas, as amended,
reads, In part, as follows:
"No one who holds an office of profit or trust under
the United States or this State, or In any city or town
in this State, or within thirty (30) days after.resignlng
or being dismissed from any such office, except Notary
Public, or who is a candidate for office, or who has not
paid his poll tax, shall act as judge, clerk or supervisor
of any election...."
We quote from 34 Texas Jurisprudence, pages 332-3-4,~,
Public officers - Section 2 - Definitions and characteristics,
as follows:
"Rany judicial definitions of 'public offlce( are to
be found in the reported cases, but they are substantially
of the same import. It is said to be a right to exercise
a public function or employment and take the fees and
emoluments belonging to it; 'a public stationor employment
Hon. Dan W. Jackson, Page 2, 0-2056
conferred by the appointment of government;land ‘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 portlon,of the sovereign
functions of the government, to be exercised by him for
the benefit of the public.’ The individual so Invested Is
a public officer. He la a person who exercises some
functions of the government - one who Is commissioned
or authorized to perform any public duty.
“The Revised Statutes provide that when an
officer is referred to in any civil or criminal law
of this State, an officer of this.State Is meant,
unless otherwise expressly provided; and various articles
of the Penal Code define ‘officer’ as the term is used
in denouncing particular offenses.
“‘Office’ embraces the Ideas of tenure, duration, emolument
and dut le 8. Among the criteria for determining whether
an employment Is a public office’are the following; the
delegation of a portion of the sovereign functions of the
government; the requirement of an official oath; that the
power8 entrusted are c0nferre.d by law and not by
contract; and the fixing of the duration or term of
office. It ia the duty pertaining to the office
and the nature of that duty, ~snd not the extent of
.authority which make the Incumbent an officer; and one
Is none the lessan officer because his authM%ty Is
confined to narrow limits. Salary or comms&%ion is not
essential to constitute an emplbyment an office; it is
a mere incident and form8 no part of the office.
“There IS, as we shall see presently, a distinction
between the ,offlce and the term of office, and between
an office and a public contract or employment.”
We quote from 34 Texas Jurisprudence, page 324,
Public officers - contract dlstlngulshed from office, as follows:
“A public office is something different from
a public contract. Offickrs hold, their positions
by election or appointment and not by contract.”
We quote from 34 Texas Jurisprudence, page8 325-6,
Publlo officers - employment dlsti~ngulshed,‘as follows:
“There is a material difference also between $%
public office and a public employment. .The relation
between an office bolder and the government under which
. .
Hon. Dan W. Jackson, Page 3, 0-2956
he function8 Is not that of an employer and employee,
and ~thelr respectlve.rights are not to be determined
by application of the rules of contracts of employment.
As said by Chief Justice br8hal1, ,‘Although an office
is an employment,, it does not follow that every employ-
ment,,is an office.
“The most Important distinction ~3s that the
creation and conferring of an office Involves a delegation
to .the, individual of some. of the sovereign functions of
t,hegov,ernment, to be exercised by ,him for the benefit of
the public. . Other distinctions are:~ that en office must
be. creat~ed by law, while an employment Mayobe:; and
frequent 1y Is , created ,by c.ontract ;, and ,offlcers are
usually required to~.take an oath’ and serve for a definite
term; and,. that the duties, of an office are. generally
continuing ,,and permanent ,.rather than temporary and
transitory. . ,. . “~
” :.
The case; of Moots. v.. Belyea, 60 N.D. 741; 2 6 N.W. 358, 75
A.L.R. 1347, .(Supreme, Court of North Dakota 3 holds that a
schoo$ _teacher employed ‘by a common.school district Is an
employee and not an,.offlcer and that the.relatlonshlp between
her and the sqhool board .ls that of contractonly.
,-
We quote:.from 75 A.L.R,, &&8 1352-3, 88 follows:
!%e courts are almost unanimous In holding that
thqie;position of a teacher is that of~~,anemployee, resting
on the contract. of employment, and not that!~of public.
officer.“’
The ‘co&%s’iof Texas have repeatedly held that school
trustees ~:are public -,offlcers of this State. See the ,followlng
case8:
“Rowan v. ‘King, 94 Tex. 659, 55 SW 123;
Kimbrough v. Darnett, 93 Tex. 301, 55 SW 120;
Lee v. Leonard IInd. School District, 24 SW (2)
443;
Thomas v. Abernathy County line Ind. School Dist.,
278 SW 3x.290 SW 152;
Buchanan v. Graham, 81 SW 12j7;
Hend,ricks~ v. State, 49 SW 705.. .'
We :quote ,,from 15 Texas Jurisprudence, page 732, Drainage
Districts.* Section :l?,; Drainage Commlssloners - Powers in
General,, as follows :;
;.., ” .,~_.
“The statutes provide ,,for the election of drainage
Hon. Dan W. Jackson, Page 4, 0-2056
commissioners, (Wt. 8119, R.C.S.) or In lieu
thereof their appointment, by the comml$stone~psl ‘court..
(Art, 8118, R.C.S.) Other provisions -regulate the
EI? e: commissioners’ term8 of office;.(Art, 81.19,
7 their salaries, (Art. 8120, R.C.S.) their oath
oi if&e. (Art. 8121,‘R.C.S.) official’ bond8,,.Y(AF$;:~ :‘~
8122, R,C,S.) and their organization,” (Parerithetidal~ ” :
$nsexMons of statutes oust)
With reference %o your flrat quest&on ~you are. i?ti&eti4%$ly
advised that It is the opinion: of this ‘departaient~ $hat” 8chool
trustee8 and drainage comm$ssloners are public @ffice?s, off,
this State and are dlsquallfled from aatlng as ‘jw,g&s,:,~ile$ks
or $upemrisora of any election In this State,. ‘,Y& :,a’ee Purther~
respectfully advised .that it is the. opinion ~of th$iae#artment
that 8ChOOl teacher8 are nqt public ‘offlcalrs &nd iir&~~t,:,~~‘. ,“~
disquallf$ed thereby from acting ‘a8 judges, -‘oletiks~~,~or _ :: :, ‘,I’
supervisors of any election in this 3tate land t@+niay
legally serve as eleatlon judges,:, clerks oar super$lsora:~$i~
not otherwise disqualified, ,You are, further Pesp@a$ful,li’ :.:, ~~
advised that It ,ls the op+ion of’thls. depsrtment,‘.that,.~‘, ,.
employee8 of the various school, systema and d*ainige~~d.lsti$ote
who are not holders of an’office~ of prbflt. or .$$uat~;,uitdeP~-.th6 ,~’
United States or this, State, nor in .,‘any‘<$:,:o$+ t6wn’:i$thi$ ‘. :~’
State, and who are not otherwise ~.disq~l,ifled ,~by~.lei+(~~:~:&Q.~ ~:~:~’ 1
legally act as judges, clerk8 or’ su$~fllsoFb ,&p~-ti.letit$+s:~$~
this State. We fael that you oan,readIZy, deter*mine~.whether,~~~, ”
or not an employee is a~public officer bjr. applying the wle.g
laid down by the quoted provlelons.of ‘Texas Jurlsptia~ncai ~~
8upra, to the facts In each situation presented to’~you.
We have carefully read then ~opinian’ of this department q ,,“’
dated May 6, 1932, written -by Ron.. Bruce ~W,BrJranc,, :F&~st ,.. ,,
Assistant Attorney General,’ referred, to by, you, ~,a!&& fiti
that same not appllaable~here beaause of a diPferent.queetian
Involved.
We have read the cases cited by you in your brief r&lativ,e~
to the second questlon.
lihe case of Savage v. Umphrles, Civi App. 118 SW 968;: 1
cited by you In your brief, decided .April 20, 19G9i. hoI&
among other thlnge, that”wJaere the. law ,,mqulred the~,~a;ppointment
of two judges In a precinct If one wa8 dlsquslifled to eat;, ~
and there 18 nothing to show that .the other d1d’tiot ~ac$;‘~‘@nd
nothing tb show that the election waa not falnly held~in that’
precinct the election 1~ that precinct will not be h6ld to,be,,
void because ~~oni:;$.@g& had~no Fight: to. act.
The case of Gayle.:!v. Alexander (Civ,App.) 75 SW.2d:7061”~
Hon. Dan W. Jackson, Page 5, 0-2056
cited by you In your brief, holds among other things, that
although the election officers were disquallfled that fact did
not render t-he election void, since statute is directory asp,
regards vallddty of electlonj ln.absence~ of attempted exercise
of influence on electors, or unfairness~ orfraud, where
qualifications of majority of election officers were not
challenged.
We quote from the opinion of the court In the case of
,Gayle v.. Alexander,-supra, as follows:
"Appellant Insists that the.provlslons of Article
2940 are mandatory;:that each of the aforesaid election
officers aforesaid was disqualified and prohibited thereby
from acting as such; and that the election in each such
votlng~precinctwas, by reason of ~their partic.lpatlon in
holding thesame., absolutely void.' A,Mandatoryiprovls5on
In a: statute +s...one, the omLsslon tomfollow, which renders the
proc,eed$,ng.to, which It. relates Illegal and void., whlle,.a
dlrectoSy:~:~Foaislon,is.:.one,, the,,observance of which is not
necessaryto~the valldlty'~of ~the.proceedlng. &statute may ':'
& mandatory in some respects.and~.dlreat._~n~
so far as the selection of election officers is concerned,,.
saidarticle .mlght well be deemed mandatoryand compliance
therewith required when ~the ellglb1llty.of~.sn officer so,,,
selected 'is denled,'or his right to serve as.such: assailed
by'lariy proper proceeding prlor,to his actual~servlce,... &
such: situation Is presented in this case, But should the
provisionsof said article In that ,phase of its application
be held mandatory, it does not necessarily follow that when
a person named in said article has been selected as an
election officer for a,particular voting precinct; and his
selection has not been agsalled but has been acaulesced in
by the qualified electors of such precinct by participating
in the election held therein, and the votes cast in such
precinct have been fairly and correctly counted and .,
tabulated'and return thereof duly made, that such election
as to said.preclnct~ should, s~olely bye reason of the
particlpatlon'of such election officer in holdfng the
same, be declared void, the returns thereof excluded from
the canvass~of the votescast In said election lh.the
entire county, and the,voters of .such precinct thereby In
effect disfranchised. ~,(Underscorlng ours)
."....We thdnk under the findings of.the.court \
herelnbefore ~recited and the above authorities, that the,
election In the several voting precincts under consideration
was not 'rendered void by the participation of such
disauallfied election officers in the holdinn thereof. So
far-as ,the provisions ,of said article effect-the valid%=
of elections In the holding of which disqualified officers
Ron. Dan W. Jackson, Page 6 0-2056
or clerks participated, the same, In the absence of some
Imputation of attempted exercise of lnfluence'upon the
electors, or unfairness or fraud, may well be~held to have
merely a directory effect." (Under scoring ours)
The case of Miller at ai v. Tucker, et al, 119 SW 2d 92,
decided June 23, 1938, by the Beaumont Court of Civil App,eals,
holds that a local option election was not rendered Invalid
because the mayor of a town In a precinct acted as precldlng
officer contrary to a statute prohibiting public office holders
from acting as election officers , where the election was fairly,
and honestly held and no objection was made to the mayor's
serving, since the statute was merely directory. This opinion
cited and followed the case of Gayle v. Alexander, supra.
In answer to your second question, you are respectfully
advised that It Is the opinion of this department that Article
29&O, Revised Civil Statutes , as amended, is directory lnso~ far
as said article affects the validity of electlons in the holding
of which disqualified officers or clerks participated, in the
absence of some Imputation of attempted exercise of Influence
upon the electors, or unfairness or fraud.
We wish to thank you for your able brief in this matter
which has aided us greatly in passing upon your questlon.~'
Very truly yours
ATTORNEY
GERERALOF TEXAS
S/ Wm. J. Fanning
BY _.
Wm. J. Fanning
Assistant
WJF :AW/c ge
APPROVED APRIL 2, 1940
f$ .Gerald C. Mann
ATl'ORNEYGENERALOF TEXAS
Approved Opinion Committee
By BWB, Chairman