dissenting.
I respectfully dissent.
Section 105.711 provides that the State Legal Defense Fund shall be available to pay all claims arising from the official duties of “[a]ny officer or employee of the State of Missouri or any agency there-of_” Section 105.716.1 requires the Attorney General to defend against any claim covered under § 105.711.
The majority holds that appellant, who is a bailiff for an associate circuit judge, is neither an employee nor officer of the state because his salary is paid by the county rather than the state.
The true test is not who pays the salary, but who controls the employee. Hammonas v. Haven, 280 S.W.2d 814, 818 (Mo.1955); Barnes v. Silk Hosiery Mills, 108 S.W.2d 58, 61 (Mo.1937).
The origin of the salary is but one factor to be used in determining whether appellant is a state employee. Appellant was hired by an official of the judicial branch of Missouri, magistrate Donald Benton. He was retained by another official of the state’s judicial branch, Associate Circuit Judge James May. See e.g., Hawkins v. Missouri: State Employee’s Retirement System, 487 S.W.2d 580 (Mo.App.1972); State ex rel. St. Louis County v. Kirkpatrick, 426 S.W.2d 72 (Mo.1968) (holding circuit judges are judges of the State of Missouri). These members of the state judiciary set appellant’s duties, supervised him and had the right to fire him. Appellant is responsible for maintaining order in a court of the judicial branch of the state of Missouri, which handles a large number of the state’s criminal prosecutions. “Indeed it is essential that the court, not the county control those personnel who assist it in performing it [sic] duties. See State ex rel. St. Louis County v. Edwards, 589 S.W.2d 283, 289 (Mo. banc 1979); State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99, 102 (Mo. banc 1970).” (See page-).
It is no less essential that the state provide legal counsel and representation to personnel who play such a vital role in the orderly performance of the duties of the judicial branch of the state. To hold otherwise could not do other than risk diluting the power of the judicial branch of government and the carefully balanced separation of powers contemplated by the Constitution of Missouri.
Accordingly, I would reverse the circuit court.