Honorable R. Canon
CoiintgAuditor
Gragson County
Sherman, Texas
Dear Sir:               Opinion No.~O-7519
                        Re: Applicability of Article 373,
                             Penal Code, to consulting engineer
                             employed by Commissioners' Court
                             under authority of Section 15,
                             Chapter 52, Special Laws of Texas,
                             36th Legislature.

        Your letter of November 20, 1946, to this department
states in part as follows:
        "At present Grayson County is employing a
    County Engineer at a salary of $2,970.00 per annum.
    This same employee operates a~roaclconstruction
    organization, which organization has been doing
    road construct,ionfor the County. As Engineer of
    the County, this employee recommends types of sur-
    facing, aiPects and approves the purchase of sup-
    plies and materials for such projects, and gives
    final approval of the completed ConstructIon; and
    as an owner of the construction concern contract-
    ing the job, directs the activities of the con-
    struction.
        "The undersigned questions the legality of such
    joint ectivities and requests your opinion on the
    following questions:
        "Question #l.
        "IS the County Engineer considered '8 county
    officer' as referred to in Article 373 of the Penal
    Code of the State of Texas.
        "Question #2.
        "Can the County Auditor approve payment of monies
    for road construction to an unincorporated fir1II,when
    one of the owners of the firm is receiving a salary
Honorable R. Canon - page 2            o-7519


    as County Engineer of the obligated County, and is
    concurrently directing the activities of the firm."
        In reply to our request for additional facts, your
letter of December 9, 1946, states:
        "1 . From the Minutes of the Commissioners'
    Court of this County it appears that the County
    Engineer is employed under the authority of H.B.
    387.

        "2. He is not holding the Office of 'Superln-
    tendent of Roads and BrIdgesI.
        “3 . He is not required to take an oath of of-
    fice nor to post a bona.
        "The County Judge states that he, the County En-
    gineer, Is in reality holding the position of Consult-
    ing Engineer."
        House Bill 387 Is found on page 160 of the Special Laws
of Texas, 36th Legislature, 1919, and 1s entitled "Creating
a More Efficient Road System for Grayson County." Section 15
of this Act, referring to the Commissioners1 Court, provldes:
       "Said Court may employ a consultlng engineer when
   in its judgment it may be necessary at such salary
   and for such length of time as it may deem it proper."
           Article 373, Penal Code of Texas provldes:
       "If any officer of any county, of any city or
   town, shall become in any manner pecuniarily inter-
   ested In any contracts made by such county, city or
   town, through Its agents, or otherwise, for the
   construction or repair of any bridge, road, street,
   alley or house, or any other work undertaken by such
   county, city or town, or shall become interested in
   any bid or proposal for such work or in the pur-
   chase or sale of anything made for or on account
   of such county, city or town, or who shall contract
   for or receive any money or property, or the repre-
   sentative of either, or any emolument or advantage
   whatsoever in consideration of such bid, proposal,
   contract, purchase or sale, he shall be flned not
   less than Fifty ($50.00) nor more than Five Hundred
   ($500.00) Dollars."
           There is a material difference between a public office
TlnnorableR. Canon - page 3         o-7519



and a pl;F,lie
             employment. The relationship of the office hold-
er and the government under which he functions is not that of
an employer and employee. Further, their rights are not deter-
mined by the ordinary rules of contracts.
        In the case of Robertson vs. Ellis County, 84 S.W.
1097, the Court used the following quotation attributed to
Chief Justice Marshall:
        "Although an office is an employment, it does
    not follow that every employment is an office."
         The distinctions applied are that in the creation and
conferring of an office, there is a delegation of some of the
sovereign functions of the government be exercised by him for
the benefit of the public; an office is created by law, while
an employment may be created by contract; officers are usually
required to take an oath; serve for a definite term; and the
duties are generally continuing and permanent rather than
temporary and transitory. Garrett vs. Commissioners' Court
of Limestone, 230 S.W. 1010, reversed onother grounds 236 ,S.W.
970, rehearing denied 238 S.W. 894; Lightfoot vs. Lane, 140
S.W. 89.
        PublLc office is generally considered to be one which
is elected by the popular vote of the citizens, or appointed
as provided by statute, and incident to such appointment is
the right to retain su~choffice for a specified term except
as provi~dedfor in the statutes for removing public officials
generally.
         IIere the statute uses the term "employ a consulting
engineer", therefore, inferring that said consulting engineer
is an employee or agent of the county and not a public officer
as such. Further, under the provision that a public office
should be permanent and continuing, the sta+ute provides "when
in its judgment it may be necessary", thereby indicating that
an office 1s not created, but merely an employment by the Com-
missioners' Court whenever it deems It necessary and for what-
ever length of time said Commissioners' Court may deem proper.
 It is noted that nowhere In the said Act Is such offlcer men-
 t ioned, and in particular no specific duties are prescribed
 1~:connection with such employment.
        Therefore, it is our opinion that the said engineer is
not a county officer within the meaning of Az2ticle373, Penal
Code of Texas.
        We are not passing on the validltg of such activities
nor legality of such contracts. However, as an agent of the
                                                          _-.   .




Honorable R. Canon - page 4            o-7519



county, your engineer would .be governed by the general rules
of agency. For a discussion of these rules see 2 Texas Jur-
isprudence 592, Sections 181 et seq. and 2'American Jurispru-
dence 203, Sections 251 et seq.
        As to the application of these rules to your partlcu-
lar fact situation, we suggest that you consult your County
Attorney.
                                  Yours very truly
                              ATTORNEY GENERAL OF TEEAS


                                  By s/$Ii.lllam
                                               B. Henley, Jr.
                              .        William B. Henley, Jr.
                                       Assistant
wmi :a jm:wc

APPROVFD DEC 17, 1946
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/%iB Chairman