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Honorable Clifford B. Jones, Resident Texas TechnologioalCollege Lubbock, Texas
Dear Sirr Opinion Number O-4902 Re: mother State Collegemay employ part-timemusic instructorwho mill be employed on part-time basis by school district at same time. piehave receivedyour letter of recent date which we quote, in part, a* follcssr

"A ratherheavy enrollment in our Rusio Department (Band) requires an additional part-time instructor. A simplificationof the matter, in keepingwith economy indicates the advisability of employing a part-time instructor. "The Lubbock Public Schools are confrontedwith 8 similar situation,and the problem couldbe solved if the said Public Schools and Texas TeohnologicalCollegeemploy a man who is available, they to use him for a portion of the time and we to use him for a portion of the time at en expense to us of (600. Therewould be no overlapping with respect to services~ that is to say,we would not be payinghim at a time when he was engagedwith their instruction, and the converseof coursewould be true1 namely that they would not be paying him when he was engagedhere. "Will you be kind enough to advise us as promptly as possiblewhether we have the legal right to engage this instructor upon a part-timebasis as outlined?"
A school teacher is not a public officer. Martin v. Fisher, 291 P. 2761 Leymelv. Johnson, 288 P. 659; 56 C. J. 382: 37 Tax. Jur. 1035; OpinionsNo. O-4669,No. O-4628, and O-371. Therefore, Section 40 of ArticleXVI, Constitutionof Texas,which prohibits the holding ofmore than one civil office of emolument, is not applicable to the situationunder aonsideration. You state that therewould be no overlapping of services, andwe know of no reasonwhy the duties of the individualas part-time **instructor** in the college should in anyway conflict or be inoom ;;;;.",tmith his duties as part-time instructor of music in the school 5
.Honorable Clifford B. Jones, page 2 O-4902

However,we directyour attention to the provisions of Section 33 of Article XVI, Constitutionof Texas. Said sectionprovides, in part, as followsi

"The accounting officers of this State shall neither draw nor pay a warrant upon the Treasury in favor of any person, for salary or compensationa* agent, officer or appointee,who holds at the same time any other office or position of honor, trust or profit, under this State or the United States, except as prescribed in this Constitution." The constructionof Section 33 was involved in Opinion No. O-2607. We quote the following from said opinion:

"It is clear that this sectiondoes not seek to prohibit the serving of the State by one individual in more than one capaaity. The provision addresses itself only to thematter of compensation. Thus, a man may hold two offices, or an office and a position of honor and
. trust under the State, if no ocmpenaatiomattaohes to either place. &t if he holds an office, or is an agent or appointee,and to such place ccmpensationattaches,he may not be paid for servicesrendered in that oapacity during the period of time that he holds another position of honor or trust under the State or the United States. From this general statementas to what the se&ion does and does not prohibit,we gather the generalpolicy embodied therein. This policy seams obviouslyto ba that no person should receive compensation from the State for services to be rendered it,when during the time such compensationis to be earned such person, by accepting and holding another position under the State or the United States, has obligatedhimself to render 3ervices in ccnnectionwith the latter position, so that he may not render full value in the first capacity for the compensationwhioh the State has agreed to pay. So construed,we find that the Section is but one of the many in the Constitution seeking to place every conceivable safeguardabout the expenditure of Statemoneys. So construed,this Section seeksto avoid even the possibilitythat the Statemay not receive a full quid pro quo for expendituresby way of compensationfor servicesto be rendered in one capacity,by reason of the person serving in that capacityplacinghimself in such a position that hemay be tempted to neglect the duties of the one place for the responsibilitiesof the other. "Ana,lysed,

Article 16, Section 33, provides thatr
".An(a) offioer, (b) agent, or (c) appointee for salary or compensation is not entitled to receive payment from the accounting offioers of the State of such compensationHonorable Clifford 8. Janus, r<i.?c :. O-4902

if, during the same time that he holds the place to.which such salary or compensationattaches, he also holds any other office or positions of (a) honor, (b) trust, or (0) profit." There cen be no doubt that an instructor in a Stete supported college'is "agent. officer, or appointee",end althoughwe have heretofore stated that a school teacher does not hold en office,we are of the opinion that he holds a "positionof honor. trust or profit".

Inview of the foregoingyou are respectfullyadvised thet e personmay legelly serve es pert-time instructor in a State supported collegeend et the same time serve es pert-time instructor in e school distriotwhere the duties attached to each position do not overlap end ere **in** no way inconsistent3however, in doing so he forfeits all right to any salary or compensationto which he might heve been ontitled es instructor in the college.

This conclusion is consistentwith those announced in previous opinions of this departmentwith reference to Section 33 of Article XVI. In Opinion No. O-1422 it ww held that e personhay simultaneously serve on the board of trustees of en independent school district end on the board of directors of the Texas College of Arts end Industries,but that in doing so he forfeits all right to compensationto which he might have been entitledes director of the college. Itwas held in Opinion No. O-2528 that while there was nothing to prohibit an inspector for the Texas Liquor Control Board from serving also es trustee of en independent school district,he would be entitled to no compensationes inspector for the Liquor ControlBoard if he served in both capacities. In Opinion No. O-2607 itwas held that if a physician employed on e parttime basis by a State eleemosynary institutionaccepts end holds a similarplace in another eleemosynary institutionat the seme time, he is entitled to no snlaryduring the period of time thet both positions are held.
You state in your letter of request that the practice of employingpert-time instruotors,es outlined, is being followed byvarious independent sohool districts. Ge think it proper to point cut that the inhibition contained in Section 33 of Article XVI is applicable only to the State aacounting officers. Itwould not prevent the accounting officers of e school district from paying an instructorof the district for services rendered. However, the State eccounting officers drew end pay the salarywarrant issued to en instructorof e State supported college. Therefore,the inhibitionwould prevent the State ecoOunting officers from either drawing or paying e warrant in favor of en **in** struotor for salaryor compensationwhere such instructorholds et the same time sny other position of honor, profit, or trust as specified in the Constitution.

This opinion passes only on the authorit of the collsge to employ a part-time instructorunder the fact situ* ion as outlined. x It-. -

Honorable Clifford 9. Jones. page 4 O-4902

pesses neither directlynor indireotlyon the quest!onwhether there are funds appropriatedby the Legisleture fromwhich a pert-tine instructor couldbe paid. Very truly yours ATTORNEY C;NWAI,,

OF 1'XSAS

By s/George 5. Spark,s Goorps i;'.

Sparks Ass~~stant
\PPROVED OCT. 13, 1942 s/Gerald C. Mann ATTOFNEY GENERAL OF TFXiaS Approved Opinion Comittee Py WY Cheirmen