Mr. James H. Garner

State Coordinator Division of Defense & DisasterRelief Austin, Texas

Dear Mr. Garner: OpinionNo. W-804
Re: Constitutionalityof 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 constitutionalityof 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 DisasterRelief Committee. It f'urtnerstates that themayor of the city shall serve as chairman of this Committeeand shall also be known as Municipal Defense Coordinatorof the city.

The two sections of which we are concernedare: "Section4. The office of Municipal Defense Coordinator is hereby created. The MunicipalDefense Coordinator shall have the authority to request the declaration of the existence of an emergencyby the City Council or by higher authority. In the event it is deemed necessary to declare the existence of an emergencywithout delay, the Coordinatormay, if the City Council is not in session,do so, but such action shallbe subject to confirmationby the City Council at its nextmeeting." "Section 6. Each person serving as a member of the Municipal Civil Defense and DisasterRelief Committee,or as an officer, employee, or volunteer In any capacity in the Municipal Civil DefenseMr. James H. Garner,page 2 (~~-804)

and DisasterRelief Organization created by resolution or directivepursuant to the authorityherein conferred, shall,prior to assuming their duty or duties, take an oath which shallbe substantiallyas follows:(1 I* affirm) do solemnly swear (or

ihat I iii supportand defend the ConstitutionofWthe 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 politicalparty or organization,group or combinationof 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 amember of the County Civil Defense and DisasterRelLef Committeeof the County of I will not advocate nor become a member or an affiliate of any organization, group, or combinationof persons or of any politicalparty that advocates the overthrow of the Governmentof the United States or of this Stateby force or violence.'" The question of the constitutionalityof these two Sections arises under Section 40 of ArticleXVI of the Texas Constitutionbecause of the possibility of the Mayor as Municipal Defense Coordinator,or any other appointee in the program, being classifiedas holding a public office.

Section 40 of Article XVI of the Constitutionof Texas reads in part as follows:

"No person shallhold 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 compensationfor 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 casehas defined the term "emolument"as a pecuniaryprofit, 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 pecuniarybenefit 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 Coordinatorwould in effect only be additionalduties to be performedby 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 holdingmore than one "civiloffice of emolument," samewould not be prohibitedby Section 40 of Article XVI of the Constitutionof 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 municipalitymay at the same time serve as the Municipal Defense Coordinatorof that City. Yours very truly,

JMF:mfh WILL WILSON

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

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman

CharlesD. Cabaniss
Tom I. McFarling
J. Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore