The Mass Confusion Over Whether Texas Medical Examiners Are Legit Without an Oath of Office
Some people have to take it twice.
When we saw this story about the Webb County Attorney wondering why the county medical examiner never took an oath of office, thus potentially jeopardizing all her rulings, we wondered if the same thing could ever happen in Harris County, since no medical examiner in the county's history appears to have taken such an oath.
The good news, according to Assistant Harris County Attorney Nick Lykos, is no: Despite the implication that the Webb County Attorney believes a medical examiner must sign an oath of office, Lykos told us that the position of Harris County Medical Examiner is not a constitutional office.
"He's an at-will employee, just like everyone else that's in county government other than elected officials," Lykos says. "So the medical examiner does not hold a constitutional office." (Lykos added that the office is doing further research, but this is their position "as of now.")
This echoes what a spokesperson for the Harris County Institute of Forensic Sciences told us in a press release: "This is not a constitutional office; therefore, neither Chief Medical Examiner nor his appointed Assistant Medical Examiners are required to take an oath of office."
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A spokesperson for the Texas Attorney General's Office told us that "we find no oath of office requirement for this official."
Article 16 of the Texas Constitution states that "all elected and appointed officers" must sign an oath and file it with state or local custodians (depending on the office). They must also sign an "anti-bribery" document stating they won't, uh, take bribes.
Although the Texas Code of Criminal Procedure states that a commissioners court "shall appoint the medical examiner," and that the examiner "serves at the pleasure" of the commissioners court, officials told us that the relevant part is not the word "appoint," but the "serves at the pleasure" part. That indicates that it is not a constitutional office, they say. For example, there is no set term limit -- the commissioners court could terminate a medical examiner whenever they want.
This, then, would explain why the Harris County Clerk's Office has no oath or anti-bribery documents on file for the current medical examiner, Luis Sanchez, nor for previous examiners Joy Carter and Joseph Jachimczyk. (Oddly, a 1943 AG opinion states that a position can still be a constitutional office even "though the tenure of the particular incumbent may be only during the pleasure of the Board" that appointed the person.)
Just for the heck of it, we called the Texas Association of Counties, whose 2010 Outline of Official Oath and Bond Requirements lists "medical examiner" among the many county positions requiring the signed documents.
But a lawyer at the TAC told us that it's still not that cut and dry. She referred us to a part in the Outline addressed "Who Must Take the Oath and Statement." To wit: "The major question that has arisen...is what officers are required to take the oath. Simply put, the oath is required of everyone who takes office under the authority of the state or its subdivision. The lack of a requirement for the official oath in the law creating the office is not a factor."
The TAC also lays out "elements which distinguish a public office from a mere public employment." An office is "created by the Constitution or by the Legislature, or created by a municipality or other body through authority conferred by the Legislature....By contrast, an employment may be, and frequently is, created by contract."
In the end, the TAC lawyer told us that the structure of the medical examiner's position may vary from county to county, therefore it's difficult to say with certainty whether a medical examiner is constitutionally required to sign the documents.
Attorney General opinions going back to the 1940s have tackled the apparently thorny question of who is and isn't a public officer; unfortunately, no one's ever asked about medical examiners. But many of the opinions we checked out use a 1955 Texas Supreme Court case as the public officer litmus test, with the "determining factor [that] distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others."
Opinions have determined that notary publics are required to take an oath, but chief appraisers aren't. Chief juvenile probation officer? Nope. Drainage district commissioner? You betcha.
So why, then, would the Webb County Attorney immediately jump to the conclusion that a medical examiner must sign the oath and anti-bribery statements? Chalk it up to state law being in the eye of the beholder, we guess.
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