Mr. James H. Garner 

State Coordinator 

Division of Defense & 

Disaster Relief 

Austin, Texas 

Dear Mr. Garner: 

Opinion No. W-804 

Re: Constitutionality of the 

provisions of Section 4 

and Section 6 of Division 

of Defense and Disaster 

Relief Model City Ordinance for Municipal Civil 

Defense. 

Your letter dated December 17, 1959, requests an 

opinion of this office on the constitutionality of Section 

4 and Section 6 of your Model City Ordinance for Municipal 

Civil Defense, 

Section 

Municipal Civil - 

1 of the Model City Ordinance creates a 

Defense and Disaster Relief Committee. It 

f'urtner states that the mayor of the city shall serve as 

chairman of this Committee and shall also be known as Municipal Defense Coordinator of the city. 

The two sections of which we are concerned are: 

"Section 4. The office of Municipal 

Defense Coordinator is hereby created. 

The Municipal Defense Coordinator shall 

have the authority to request the declaration of the existence of an emergency by 

the City Council or by higher authority. 

In the event it is deemed necessary to declare the existence of an emergency without 

delay, the Coordinator may, if the City 

Council is not in session, do so, but such 

action shall be subject to confirmation by 

the City Council at its next meeting." 

"Section 6. Each person serving as 

a member of the Municipal Civil Defense 

and Disaster Relief Committee, or as an 

officer, employee, or volunteer In any 

capacity in the Municipal Civil Defense 
Mr. James H. Garner, page 2 (~~-804) 

and Disaster Relief Organization created 

by resolution or directive pursuant to the 

authority herein conferred, shall, prior 

to assuming their duty or duties, take an 

oath which shall be substantially as follows: 

(1 I* 

affirm) 

do solemnly swear (or 

ihat I iii support and defend the 

Constitution ofWthe United States and the 

Constitutionof the State of Texas, against 

all enemies, foreign and domestic; that I 

will bear true falth and allegiance to the 

same; that I take this obligation freely, 

without any mental reservation or purpose 

of evasion; and that I will well and faithfully discharge the duties upon which I am 

about to enter. And I do forever swear (or 

affirm) that I do not advocate, nor am I a 

member or an affiliate of any political party 

or organization, group or combination of personsthat advocates the overthrow of the 

Government of the United States or of this 

State by force or violence; and that during 

such time as I am a member of the County Civil 

Defense and Disaster RelLef Committee of the 

County of I will not advocate nor 

become a member or an affiliate of any organization, group, or combination of persons or 

of any political party that advocates the 

overthrow of the Government of the United 

States or of this State by force or violence.'" 

The question of the constitutionality of these two 

Sections arises under Section 40 of Article XVI of the Texas 

Constitution because of the possibility of the Mayor as Municipal Defense Coordinator, or any other appointee in the program, being classified as holding a public office. 

Section 40 of Article XVI of the Constitution of 

Texas reads in part as follows: 

"No person shall hold or exercise at 

the same time, more than one civil office 

of emolument, . . .' 
Mr. James H. Garner, page 3 (~~-804). 

The definition given by Black's Law Dictionary, 

Fourth Edition, page 616, defines "emolument" as the profit 

arising from office or employment; that which is received 

as a compensation for services, or which is annexed to the 

possession of office as salary, fees and perquisites; advantage, gain, public or private. Webster's New International 

Dictionary: Any perquisite, advantage, profit or gain arising from the possession of an office. 

One Texas case has defined the term "emolument" as 

a pecuniary profit, gain or advantage. Irwin v. State, 177 

S.W.2d 970 (1944). 

The office of mayor is a civil office. If the law., 

by city ordinance or otherwise , authorizes a salary or other 

pecuniary benefit to the office holder, then it is determined to be a civil office of emolument. 

The performance of the duties of Municipal Defense 

Coordinator Is not the holding of an office of emolument. 

There is nothing in the Model City Ordinance that grants 

compensation to the Municipal Defense Coordinator. The functions of Municipal Defense Coordinator would in effect only 

be additional duties to be performed by the Mayor in the 

execution of the duties of his office. 

Therefore, since the Mayor of a city in holding the 

office of mayor and in acting as Municipal Defense Coordinator would not be holding more than one "civil office of emolument," same would not be prohibited by Section 40 of Article 

XVI of the Constitution of Texas. 

In addition, we think there is no common law incompatibility involved in the Mayor's acting as Municipal Defense Coordinator. 

SUMMARY 

The Mayor of a municipality may at 

the same time serve as the Municipal 

Defense Coordinator of that City. 

Yours very truly, 

JMF:mfh 

WILL WILSON 

gl 
Mr. James H. Garner, page 4 (~~-804). 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Charles D. Cabaniss 

Tom I. McFarling 

J. Arthur Sandlin 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore