ENERAE 

Honorable Clifford B. Jones, Resident 

Texas Technologioal College 

Lubbock, Texas 

Dear Sirr Opinion Number O-4902 

Re: mother State College may 

employ part-time music 

instructor who mill be 

employed on part-time basis 

by school district at same 

time. 

pie have received your letter of recent date which we quote, 

in part, a* follcssr 

"A rather heavy enrollment in our Rusio Department 

(Band) requires an additional part-time instructor. A 

simplification of the matter, in keeping with economy indicates the advisability of employing a part-time instructor. 

"The Lubbock Public Schools are confronted with 8 

similar situation, and the problem could be solved if the 

said Public Schools and Texas Teohnological College employ 

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. There would be no overlapping 

with respect to services~ that is to say, we would not be 

paying him at a time when he was engaged with their instruction, and the converse of course would be true1 namely that 

they would not be paying him when he was engaged here. 

"Will you be kind enough to advise us as promptly as 

possible whether we have the legal right to engage this 

instructor upon a part-time basis as outlined?" 

A school teacher is not a public officer. Martin v. Fisher, 

291 P. 2761 Leymel v. Johnson, 288 P. 659; 56 C. J. 382: 37 Tax. Jur. 

1035; Opinions No. O-4669, No. O-4628, and O-371. Therefore, Section 

40 of Article XVI, Constitution of Texas, which prohibits the holding 

of more than one civil office of emolument, is not applicable to the 

situation under aonsideration. You state that there would be no overlapping of services, and we know of no reason why the duties of the 

individual as part-time instructor in the college should in any way 

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 direct your attention to the provisions of Section 

33 of Article XVI, Constitution of Texas. Said section provides, 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 compensation a* 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 construction of Section 33 was involved in Opinion No. 

O-2607. We quote the following from said opinion: 

"It is clear that this section does not seek to 

prohibit the serving of the State by one individual in 

more than one capaaity. The provision addresses itself 

only to the matter of compensation. Thus, a man may hold 

two offices, or an office and a position of honor and . 

trust under the State, if no ocmpenaatiom attaohes to 

either place. &t if he holds an office, or is an agent 

or appointee, and to such place ccmpensation attaches, he 

may not be paid for services rendered 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 statement as to what the se&ion does 

and does not prohibit, we gather the general policy 

embodied therein. This policy seams obviously to ba that 

no person should receive compensation from the State for 

services to be rendered it, when during the time such 

compensation is to be earned such person, by accepting and 

holding another position under the State or the United 

States, has obligated himself to render 3ervices in ccnnectionwith the latter position, so that he may not render 

full value in the first capacity for the compensation whioh 

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 safeguard about the expenditure 

of State moneys. So construed, this Section seeks to avoid 

even the possibility that the State may not receive a full 

quid pro quo for expenditures by way of compensation for 

services to be rendered in one capacity, by reason of the 

person serving in that capacity placing himself in such a 

position that he may be tempted to neglect the duties of 

the one place for the responsibilities of 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 compensation 
Honorable Clifford 8. Janus, r<i.?c :. O-4902 

if, during the same time that he holds the place to.which 

such salary or compensation attaches, 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 although we have heretofore stated that a school teacher does not hold en office, we are of 

the opinion that he holds a "position of honor. trust or profit". 

In view of the foregoing you are respectfully advised thet e 

person may legelly serve es pert-time instructor in a State supported 

college end et the same time serve es pert-time instructor in e school 

distriot where the duties attached to each position do not overlap end 

ere in no way inconsistent3 however, in doing so he forfeits all right 

to any salary or compensation to which he might heve been ontitled es 

instructor in the college. 

This conclusion is consistent with those announced in previous 

opinions of this department with reference to Section 33 of Article XVI. 

In Opinion No. O-1422 it ww held that e person hay 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 compensation to which he might have 

been entitled es director of the college. It was 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 compensation es inspector 

for the Liquor Control Board if he served in both capacities. In 

Opinion No. O-2607 it was held that if a physician employed on e parttime basis by a State eleemosynary institution accepts end holds a 

similar place in another eleemosynary institution at the seme time, he 

is entitled to no snlary during the period of time thet both positions 

are held. 

You state in your letter of request that the practice of 

employing pert-time instruotors, es outlined, is being followed by various 

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. It would not prevent the accounting officers of e school district from paying an instructor of the district 

for services rendered. However, the State eccounting officers drew end 

pay the salary warrant issued to en instructor of e State supported 

college. Therefore, the inhibition would prevent the State ecoOunting 

officers from either drawing or paying e warrant in favor of en instruotor for salary or compensation where such instructor holds 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 instructor under the fact situ* x ion as outlined. It 
-. - 

Honorable Clifford 9. Jones. page 4 O-4902 

pesses neither directly nor indireotly on the quest!on whether there 

are funds appropriated by the Legisleture from which a pert-tine instructor could be 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