The Attorney General of Texas 

December 29. 1981 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin. TX. 78711 

5121475-2501 

Telex 910/674-1367 

Telecopier 5121475~266 

1807 Main St., Suite 1400 

Dallas. TX. 75201 

21417422.944 

4824 Alberta Ave.. Suite 160 

El Paso, TX. 79905 

91515333464 

1220 Dallas Ave.. Suite 202 

Houston. TX. 77W2 

713lS500666 

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Lubbock, TX. 79401 

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McAllen. TX. 78501 

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200 Main Plaza. Suite 400 

San Antonio. TX. 76205 

512l225.4191 

An Equal OpportunityI 

Aflirmative Action Employer 

Mr. James A. Adkins 

Acting Commissioner 

Texas Department of Mental Health 

and Mental Retardation 

P. 0. Box 12668 

Austin, Texas 78711 

Opinion No. MN-418 

Re: Whether state employees 

may hold full time and part 

time jobs at the same facility 

Dear Mr. Adkins: 

You have Inquired as to whether Texas law permits a full-time 

employee-of a facility operated by the Texas Department of Mental 

Health and Mental Retardation to hold another part-time position of 

employment at the same facility. This question was left unresolved in 

Attorney General Opinion MW-311 (1981). More specifically, the 

question is whether or not vocational nurses and registered nurses can 

hold such dual employment. 

The Texas Department of Mental Health and Mental Retardation is 

an agency of the state and thus its employees are “individuals who 

receive all or part of their compensation either directly or 

indirectly from funds of the State.” Tex. Const. art. XVI, §40. 

Whether a common law incompatibility exists between their full-time 

, positions and their part-time duties is a fact question. However, we 

see no basis for concluding that incompatibility exists as a matter of 

law. It is unnecessary to determine whether there is a separation of 

powers problem since only one agency Is involved. Since both the 

full-time and part-time positions are nursing positions, it appears 

that there is not a violation of article XVI, section 40 of the Texas 

Constitution if it is determined that the position of nursing does not 

qualify as a “civil office of emolument.” 

Article XVI, section 40 of the Texas Constitution provides that 

civil offices of emolument may not (with certain exceptions) be 

simultaneously held by a person holding another civil office of 

emolument. Since both the full-time and part-time positions are paid 

positions “of emolument,” the inquiry becomes: “Are the positions 

‘civil offices’?” The essential inquiry in determining whether an 

individual holds a civil office within article XVI, section 40, is 

whether he exercises some portion of the sovereign power of the 

government. See Aldine Independent School District V. Standley, 280 

S.W.2d 578 (Tex. 1955). 

p. 1425 
Mr. James A. Adkinr - Page 2 (MW-418) 

From your description of the duties of the employees at their 

full-time and part-time jobs. it appears that theirs are public 

employments, but that those employments do not rise to the status of 

"public offices" or "civil offices." Their duties do not involve an 

exercise of any portion of the sovereign power. 

Based upon the information you have given us, it is our 

conclusion that such full-time and part-time employments are not 

prohibited under the dual employment prohibition In Texas law. See 

generally Bullock v. Hardin, 578 S.W.2d 550 (Tex. Civ. App. - Aus= 

1979, writ ref'd n.r.e.). 

SUMMARY 

Employees of the Texas Department of Mental 

Health and Mental Retardation who are employed by 

such facility on both a full-time and part-time 

basis in nursing positions are not prohibited by 

law from such dual employment. 

Very truly yours, 

-MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER. JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Roxanne Caperton 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Roxanne Caperton 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

p. 1426