OFFICE OF THE AlTORNEY GENERAL OF TEXAk
AUSTIN
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Honorable Edvln Lsc~, Comml~~l~ne~
apartment of Publlo Safety
Austin, Tsxaa
Dear s1ri
f the Leglslatime, and all officera,
cr u>on the duties Of' their Ofilooa,
ahall take the follovlng Oath or afS.lrnatlont
‘I, do solemly wear (or
affirm), that f vi11 Pafihfully execute the duties
of the office of of ths State of
Texas, and will to tha beet of ny aSlUty p-escrve,
gonorable Edwin Lac9, Comlrrionec, rage 2
.
protest, and derend the Oon~tltutlon and Law8
of the Dnlted States and of thlr State; and
1 rwth0m0re solemn19 avear (or arrirm), that
‘I have not dlreotly nor indirectly paid, otfered,
or promised to pap, contributed, nor protised
to contribute an9 money, or valuable thing, or
promised any pub110 offioe or employment, aa a
revard for the glvlng or rithholdlng a votu at
the election at vhloh I va8 eleotod. 30 he12 ne
Wd.*
St vi11 be. observed that’the oath haa rebtlon only
to bribery of elebtors “at the eleatlon” at Milch the otfloer
vas elected. The oath does not have reference to nominations.
So that a county oommlsslonor vho vilfully exercisea his
paver to employ FersOn8 to vork ur,on the roads of the county,
to employ persons not peeded in such vork in oonaldoration of
their votlrg for his nomlx!atlon at a primary election doer not
Oonstltuto a violation of the Constitutional oath of ofrlce
80 ad to subject him to removal from the office in the event
he should be elected thereto at the genePa electlsn. iie nag
be punlshod under the provisions of Fecal Code, Artlale 196,
for oorruptlg using his authorit or iFfluonce, but ruch punish-
ment does not carry a disquaUrioatlon for election to the of-
flee to vblch he haa been nominated;
In this oonneotlon, It mat be rouembored that the
Legislature has seen fit to provide that “No offloer in this
State shall be’removod from,office for any aot he ma9 have
Oommittod prior to hla election t0 OffiCe.” Article 5986ir PII
Wnded Act6 1939, 46th Leg., House Bill 493, Seotlon 1.
A oomals~lonor, then,’ canmt be removed from hla
Offloe durips the seoond term to which he ma9 have been elected
for an aot vhloh he has committed dwlng his first tomn in
ruoh of ri0e.
! In ansvor to your third question, you are advised that
a County comlesio~er vho vilfully exerolsos hle power to
employ persons to work upon the roads of the county to engage
the services of parsota not needed in euoh uork for the ~‘urpoae
or rurthor:ng hia $?ersor?al polltlcal ambition la t?ot guilty
or m,lsapplication of publio funds, as that ofienae Is deflrod
t by the I/~~:l~laiurs. In t;?~ 003~ Of’ ~~~~r.~S
V3. StCbtO, l’j3 3. k?.
(26) 105, the Court of Criuitisl Appeals hold that a oount9
,
Eonorable Edvln Leoy, ComrPimaioner, Page 3
oommlasloner vho rlled a flotitlow account and eeoured ad
oarhed a varrant and gave a portion of the prooeodr in exoeea
of payment due on an auto to the seller of the auto oould not
be oonvloted of misapplloatlon of pub110 fur?de, in the abeenoe
of evidence th%t the money involved vab ln the hands of the
ooumlssiomr in his offlolal oapaoltp, holding that county
oommlseloners are not by virtue of their offloo custodians o?
oounty funda.
With respect to your fourth and laat quertion, ~rou
are advised that in the cplnlon of th1.s dspartzeent the vl’ong-
rui employment or vropgrul approval or .acoounts against the
oounty for aervlcos rendered by anaJployeo unnecessarily hired
to vork upon tho I;ubllc roads doe8 not constitute a thoft of
oounty furds by false pretext. As stated by the Supreme Court
or Texas in the case or State vs. ‘Klcgsbury, 37 !&IX. 159:
'There is no vrltten lav of this Stato oxpresely defining the
act of the county co.Ut in wlavfully epiwovlng an account against
the county as a penal orrenao.”
Yours very truly
AWORm G~itSRAL OF TEXAS
Riohard Ii. Fairchild
Assistant
I
APPROVEDDEC 5, 1940
ATTORNEY GEXERAL bF TZXAS