approval of the the Se- arias we can aeterdne, hereof provides:' sation where the relationship between 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'individual performs any servioea, of whatever nature, as the employee of such person. The term 'employer' *2 ~Honorable W. C. l&Donald, page 2

is not limited to private persons engaged in trade or business, but includes organizations which, under Section .lOl of 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 ascertained in the light of the general purposes of the Act and the General Regulations,

"Generally, the legal relationship of employer and employee exists when the person for whom services are performed has the right to oontrol and direct the individual who performs the servioes, not only as to the result to be acoomplishea by 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 oonuection it is unnecessary that 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, oharacteristic of an employer, but : not necessarily present in every ease, are the furnishing of tools and the furnishing'of a .plaoe to 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 accomplished be thework~ana not as to the means and nethods for accomplishing the result, he is an independent contractor. An inaiviaual~performing services as an independent eontraator is not an~employee as to such services. Physicians, lawyers, arohiteofs, contractors and others who follow an independent trade, business or profession in mhich they offer their servioes to the public are~generally independent contrao- tors ana not employees. Whether the relationship ofemployer- employee exists will be determined upon an examination of the particular faots of eaoh aase.

*If the relationship of employer and employee exists the designation or description of the relationship by the par- zti;iiything other than that 'of employer and employee is

If such relationship exists, it is of no ,consequenoe that the.&ployee is designated as a partner, co-adventurer, agent or independent oontraotor. The measurement; method or de- signation of compensation is immaterial if the r@ationehip of employer ana employee thus in faet exists. '~ *3 Honorable W. C. McDonald, Page 3

"An offlo& of a corporation IS au employee of the corporation but a director as such is not. A aireo- tor may be an employee,of the corporation, however, if he performs servioes for the corporation other than those required by attendance at and participation in meetings of the board of directors.n

Sec. 1002.32 provides:

"The provisions of these Regulations are applicable in every respect to any salary paid by,the United States, any State, Territory, or possession or political subdivision thereof, the ~District of Columbia, or any agency or instrumentality of 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.ordinance or resolution enacted by a governmental unit inferior to a State, Territory, or possession. Salaries covered by the Federal Classifioation Act of 1923, as amended, are exoludea from the operation of these Regulations. Like- wise, salaries, for example, or public school teachers which are paid~unaer salary schedules fixed by a state legislature and provia- ing for maqdatory increments are 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 Regulations referred to do not affect the authority of 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 oompendation to be allowed the County Judges by the Commis- sioners' Court; or whether the provisions of See. 1002.l4 apply. It likewise becomes unnecessary to consider the question raised by you as to the oonstitutfonality of 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'PROVED DEC 21, 1942 APPROVED OPINION COMMITTEE GEWiLD C. l&ANN By GWB

ATTORN3EGENERBLOF TEXAS Chairman