OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable 17.C. McDonald
County Attorney
Coke County
Robert Leei Texas.
Dear I& McDonald:
ion whether
the Federal Salary ~Stab
authority conferred by
sioners' Court of a 0
j salary of the Coun
zea by law.
approval of the the Se-
arias we can aeterdne,
hereof provides:'
sation where the relationshipbetween him and the.person
for whom he performs the servioes is the legal relation-
ship of employee and agdoyer.. An employer is any person
for whom an'individualperforms any servioea, of whatever
nature, as the employee of such person. The term 'employer'
~HonorableW. C. l&Donald, page 2
is not limited to private persons engaged in trade or business,
but includesorganizationswhich, under Section .lOlof the Code,
are exempt from income taxation,and also Government aepart-
ments and agencies. The existence of the legal relationship
of employer and employee is to be ascertainedin the light of
the general purposes of the Act and the General Regulations,
"Generally,the legal relationshipof employer
and employeeexists when the person for whom services are
performedhas the right to oontrol and direct the individual
who performs the servioes,not only as to the result to be
acoomplisheaby the work done, but also as to the details
ana means by which that result is accomplished. An employee
is generally subject to the will and oontrol of the employer
not only as to what shall be done but how it.shall be done.
In this oonuectionit is unnecessarythat the employer actually
direct or oontrol the preoise manner in whioh the services are
performed;it is sufficrient that he has the right to do so.
The right to discharge is also an important factor indicating
that the person possessing that right is an employer.
"Other faot,ors,
oharacteristicof an employer, but :
not necessarilypresent in every ease, are the furnishing
of tools and the furnishing'ofa .plaoeto work to the inaivi-
dual who performs the servioes. In general, if.an individual
is sub&et to the oontrol or dire&ion or another merely as
to the result~to be accomplishedbe thework~ana not as to
the means and nethods for accomplishingthe result, he is an
independentcontractor. An inaiviaual~performingservices as
an independenteontraatoris not an~employeeas to such services.
Physicians,lawyers, arohiteofs,contractorsand others who follow
an independenttrade, business or profession in mhich they offer
their servioes to the public are~generallyindependent contrao-
tors ana not employees. Whether the relationshipofemployer-
employee exists will be determinedupon an examinationof the
particularfaots of eaoh aase.
*If the relationshipof employer and employee exists
the designationor descriptionof the relationshipby the par-
zti;iiything other than that 'ofemployer and employee is
If such relationshipexists, it is of no ,consequenoe
that the.&ployee is designated as a partner, co-adventurer,
agent or independentoontraotor. The measurement;method or de-
signationof compensationis immaterialif the r@ationehip of
employer ana employee thus in faet exists. '~
Honorable W. C. McDonald, Page 3
"An offlo& of a corporationIS au employee of
the corporationbut a director as such is not. A aireo-
tor may be an employee,ofthe corporation,however, if
he performs servioes for the corporationother than those
requiredby attendance at and participationin meetings of
the board of directors.n
Sec. 1002.32 provides:
"The provisions of these Regulationsare applicable
in every respect to any salary paid by,the United States, any
State, Territory,or possessionor political subdivisionthereof,
the ~Districtof Columbia, or any agency or instrumentalityof any one
or more of the foregoing, except where the amount of such salary is
fixed by statute. The term 'statute'for purposes of this Section
does not include a munieipal.ordinanceor resolution enacted by a
governmentalunit inferior to a State, Territory,or possession.
Salaries covered by the Federal ClassifioationAct of 1923, as
amended, are exoludea from the operationof these Regulations.Like-
wise, salaries, for example, or public school teachers which are
paid~unaer salary schedulesfixed by a state legislatureand provia-
ing for maqdatory incrementsare excluded from the operation of these
Regulations. See Section 1002.17.n
The County Judge of a Texas county is an officer, not an
exdployee.Consequently,the Regulationsreferred to do not affect
the authorityof the Commissioners* Court to increase his ex-officio
salary.
In view of the foregoing, it becomes &eoessary to aeter-
mine whether the salary of the County Judge is "fixed by statute",
within the meaning of Sea. 1002.32, where the statute fixes the
maximum oompendationto be allowed the County Judgesby the Commis-
sioners' Court; or whether the provisions of See. 1002.l4 apply.
It likewise becomes unnecessaryto considerthe question raised
by you as to the oonstitutfonalityof such regulations insofar as
they purport to apply to the State and its political subdivisions
and instrumentalities~..
Very truly yours
ATTORNEYGENXXAL OF TEXAS
BY (8) R. W. Fairchild
Assistant
RWF-MB
AZ'PROVEDDEC 21, 1942 APPROVED OPINION COMMITTEE
GEWiLD C. l&ANN By GWB
ATTORN3EGENERBLOF TEXAS Chairman