THE ATTO~~-EY GENERAL
OF TEXAS

Hbnorable J. P. Gibbs, Commlssfoner Casualty InsuranceDivision Board of InsuranceCommlssloners Austin, Texas

Dear Mr. Gibbs: OpinionNo. 0-5896 Re: Whether tinemployeeof the State InsuranceCommission, who performs certain'duties working full time, as required by law, in that particularposltlonmay draw compensationfrom the State for this additionalwork before
or after the hours he works in the regular position.

You vrite us as follows:

"In my department, I am confronted with a very serious problem in that after March 1, 1944, at least one of the members of my technical staff in a key positionwill no longer be with
me because he is entering the armed services. For quite sometime, it has been a real problem for my small department to operateand try to superviseas Is required by law. The casualty business during the past year amounted to approximately $~O,OOO,OOOin the State of Texas. Even In ordinary times, 

### it was 

### difficult to find availablemen qualified in actuarial science. It is absolutely impossible,insofaras I can determine, for me to obtain anyone qualified in this particular field of insurance whLch is absolutely essential to the performanceof the requirements Imposedupon my departmentby lav.

"To give you a very specificcase, the Read Of my Automobile InsuranceSectlon, besides his actuarial capacity,must have the ability to know contractsand be.able to,drawup instruments to afford coverage required by the policyholders who pay normally $30,000,000in automobileLnsurance premiums. This department,as you know, la required to prescribe standardpolicy formsHonorable J. P. Gibbs - page 2 0-5896

for vorkmen'scompensationand automobilelnsurante togethervlth all the endorsementsto be used In connection

vith the writing of such business. We now have more than 200'endoMement forms &lone In the Automobile InsuranceSection. Th6 Head of' that sectionhas been called Into the armed services, and I have pledgedniy vora, as has been done by

. businessand governmental Institutions generally, to bald the~posltlotis for the boys -entering the armed services In order that they might occupy such positions If and when they return. To my way of thinking,taking these boys back Into their - positionswhen they return Is a fundamentalAmerican prlnclple.

"Themembers of my technicalstaff during the last year particularlyhave worked falthfnllyand dlllgentlyto perform the duties required. This seriousproblempresents to me the questlon of whether I can pay the presentHead of the Workmen's Compensation

technical staffwho Is highly quallfled for either of these two key positionspart of the salaryappropriatedfor the Director of Automobile Insurancebased on the number of overtime hours he puts In on this job and at the same time pay him the full amount of the appropriationfor the job he occupiesprincipallyas Chief Actuary of the Workmen'sCompensationSectionto which he would give at least eight hours per day of his services.
"Section15(b) of the currentappfoprlatlon bill ,(Senate

Bill 332) passed by the last session of the LegislatureIs somewhatambiguous. I should like, therefore,for you to advise me on the fo.lloving question:

"Couldan employeevho performsa certain duty and working the full time as required by law In that particularposition draw compensationfor this additional work after or before the hours he vorks In the ~~. regularposltlon? The additional vork performed after hours Is not In line vlth his regularwork.

_.

“AS this Is a very urgent and importantmatter, I~res~ectfully

request your opinionat an early date. 2, .

Honorable J. P. Gibbs - page 3 O-5896

Section 33 of Article XVI of the Constitution reads In part as follows:

"The accounting officers of this State shall neitherdraw nor pay a warrant upon the Treasury In favor of any per&on, for salary or compensatlon as agent, officer or appointee,vho holds at the same time any other office or positionof honor, trust or profit, under this State or theme United States, except as prescribed In this Constitution.* 4 4 4 4.”

We think your question construed In the light of the specific Illustration glven by you, shouldbe answered ln the negative.

The director and actuary of your Motor Vehicle Insurance Section (Item 26 In the currentapproprlatloii bill) undoubtedly is anagent or appointee,within the meaning of Section 33, above quoted whose compensationIs fixed In the appropriation

act at $4000.00per annum.
The other position mentionedby you, the head of the Workmen's Ctimpensation technical staff -- actuary and chief clerk -- is lIkewIsea position as an agent or appointee, '- whose compensationIs fixed at $4000.00per annum by the approprlatlonact, and both are positionsof honor, trust and profit. So that It would follow perforceof the express terms of the Constitution that one occupyingeither of these positions would be forblaaento receive compensationfrom the State for servicesperformed in the other. In truth,vhlle occupyingboth position8 he could be paid for neither.

The situationand principlehere dlsciissed has been thus stated by First AssistantAttorneyGeneral,C. U. Cureton, afterwardChlef Justice of the SupremeCourt, as follows:

"An analysis of the above quoted section of the Constitution

results In the following: That the accounting officers of this State are prohibitedfrom drawing or paying a warrant upon the treasury In favor of any person for (a) salary, (b) compensation;

as (1) agent, (2) officer; (3) appointee, lf such person at the same time holds any other (1) offlce, II 2 position of honor, (3) positionof trust, or 4 posltlon of proflt,under this State or the United States.

"Mr. Uayes Is the Lieutenant-Governor of this State, and under the Constitutionas above quotedHonorable J. P. Glbbs - page 4 0-5896

.-,. and discussed that la an office. It is llkevlse
a position of honor and trust, and while It could hardly be said, owing to the very nominal salary paid, that It Is a position of profit, yet there 1s a compensation

attached to the office of Lleutenant-Governor,

which, be It great or small, Is Intendedas.8 remunerationfor the time devoted to the office.

"It is very clear, therefore, that &.. Hayes, so long as he is Lieutenant-Governor, could not under the Constitution draw pay from the State, ,a~~:;) agent, (2) officer, (3) appointee of the

.
"As we have above endeavoredto show that a professor In the Universityof Texas is an appointee, or lnallmltea sense an agent, therefore, Mr. Mayes could not draw a salary from the State as Professorof Journalism in the University.

"The converseof the above propositionIs also true, and, therefore,Mr. Mayes, so long aa he was the agent or appointee of the State as a Professorof Journalism in the University,could not draw his pay as Lieutenant-Governor of the State, that being an office within the meaning of the Constitution.
"Therefore,shouldMr. Mayes accept the posltlon of Professorof Journalism in the University and at the same time hold and exercise the duties of the office of Lieutenant-Governor, he could not draw pay for either such office o* such posl-. tlon." p. 880. -- Opinionsof Attorney General 1912-1914,

Further analyzingthe Constitutionand expoundingits meaning as to those servantsof the State comingwithin its scope, that opnlondeclares:

"The State can only act through representatives, and such representatives are divided Into tvo classes primarily. The first class Is that of officers, who may be either electedby a Vote of 'the people or receive their commissions by appointmentby virtue of
some provisionof the Constitutionor statute, who take the oath of officeand are generallyrequired to enter Into bond for the faithfulperformanceof their duties 1 and such other obligations as~;areHonorable J. P. Gibbs - page 5 O-5896

Imposed by the statute and who exercise some function of government.

"The second class In the broader sense designates all other servants of the government as employees of the government or some of its agencies
or lnstltutlons, who hold their position by reason of contract made and entered Into by and 'between such person and some officer or agent of the State government who 1s authorized or directed to make such contract by some provision of the Constltutlon or statutes of the State. Such employee takes no oath and executes no bond and may be discharged at the pleasure of the appointing power. The tenure of his position Is fixed by the contract made and entered Into between such employee and the appointing power, or It may terminate according to the contract at the pleasure of the appointing power.
"Under one or the other of the above two classifications a professor in the University must fall; that is, he must either be an officer of the State or he must be an employee, and we will now direct our attention to fixing the status of a professor aspone or the other." -- Opinions of Attorney General 1912-1914, p. 874.

That opinion has often been cited and quoted, and ve think It represents the true construction of the Constitution.

We appreciate the stress of present conditions as ft. ~affects the admlnlstratlon of the affairs of your department, will not -to be sure, but exigencies of whatever magnlttiae justify vlolatlon of a plain constitution.

TEKAS Very truly yours

ATTORNEYGENERAL OF

OS-MR-WC BY s/Ocle Speer Oole Sp6er Assistant APPROVED MAK8, 1944 s/Gee. P. Blackburn Acting--ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BwB Chairman