THE ATTO~~-EY GENERAL 

OF TEXAS 

Hbnorable J. P. Gibbs, Commlssfoner 

Casualty Insurance Division 

Board of Insurance Commlssloners 

Austin, Texas 

Dear Mr. Gibbs: Opinion No. 0-5896 

Re: Whether tin employee of the 

State Insurance Commission, who 

performs certain'duties working 

full time, as required by law, 

in that particular posltlon may 

draw compensation from the State 

for this additional work 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 position will 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 operate and try to 

supervise as Is required by law. The casualty 

business during the past year amounted to approximately $~O,OOO,OOO in the State of Texas. 

Even In ordinary times, it was difficult to find 

available men qualified in actuarial science. 

It is absolutely impossible, insofar as I can 

determine, for me to obtain anyone qualified in 

this particular field of insurance whLch is absolutely essential to the performance of the 

requirements Imposed upon my department by lav. 

"To give you a very specific case, the Read 

Of my Automobile Insurance Sectlon, besides his 

actuarial capacity, must have the ability to 

know contracts and be.able to,draw up instruments 

to afford coverage required by the policyholders 

who pay normally $30,000,000 in automobile Lnsurance premiums. This department, as you know, 

la required to prescribe standard policy forms 
Honorable J. P. Gibbs - page 2 0 -5896 

for vorkmen's compensation and automobile lnsurante together vlth all the endorsements to be used 

In connection vith the writing of such business. 

We now have more than 200'endoMement forms &lone 

In the Automobile Insurance Section. Th6 Head of' 

that section has been called Into the armed services, 

and I have pledged niy vora, as has been done by . 

business and 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 - 

positions when they return Is a fundamental American prlnclple. 

"The members of my technical staff during the 

last year particularly have worked falthfnlly and 

dlllgently to perform the duties required. This 

serious problem presents to me the questlon of 

whether I can pay the present Head of the Workmen's 

Compensation technical staff who Is highly quallfled for either of these two key positions part of 

the salary appropriated for the Director of Automobile Insurance based on the number of overtime 

hours he puts In on this job and at the same time 

pay him the full amount of the appropriation for 

the job he occupies principally as Chief Actuary of 

the Workmen's Compensation Section to which he 

would give at least eight hours per day of his 

services. 

"Section 15(b) of the current appfoprlatlon 

bill ,(Senate Bill 332) passed by the last session 

of the Legislature Is somewhat ambiguous. I should 

like, therefore, for you to advise me on the fo.lloving question: 

"Could an employee vho performs a certain duty and working the full time as required by law In that particular position 

draw compensation for this additional work 

after or before the hours he vorks In the ~~. 

regular posltlon? The additional vork performed after hours Is not In line vlth his 

regular work. _. 

“AS this Is a very urgent and important matter, 

I~res~ectfully request your opinion at 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 

neither draw 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 position of 

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, should be answered ln the 

negative. 

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

appropriation act at $4000.00 per annum. 

The other position mentioned by you, the head of the 

Workmen's Ctimpensation technical staff -- actuary and chief 

clerk -- is lIkewIse a position as an agent or appointee, '- 

whose compensation Is fixed at $4000.00 per annum by the approprlatlon act, and both are positions of honor, trust and 

profit. So that It would follow perforce of the express terms 

of the Constitution that one occupying either of these positions would be forblaaen to receive compensation from the 

State for services performed in the other. In truth, vhlle 

occupying both position8 he could be paid for neither. 

The situation and principle here dlsciissed has been 

thus stated by First Assistant Attorney General, C. U. Cureton, 

afterward Chlef Justice of the Supreme Court, as follows: 

"An analysis of the above quoted section of 

the Constitution results In the following: 

That the accounting officers of this State are 

prohibited from 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) 

position of 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 Constitution as above quoted 
Honorable 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 

Intended as.8 remuneration for 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 endeavored to show that a 

professor In the University of Texas is an appointee, or lnallmltea sense an agent, therefore, Mr. Mayes could not draw a salary from the 

State as Professor of Journalism in the University. 

"The converse of the above proposition Is 

also true, and, therefore, Mr. Mayes, so long aa 

he was the agent or appointee of the State as a 

Professor of 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, should Mr. Mayes accept the posltlon of Professor of 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. 

-- Opinions of Attorney General 1912-1914, 

Further analyzing the Constitution and expounding its 

meaning as to those servants of the State coming within its 

scope, that opnlon declares: 

"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 elected by a Vote of 'the people or receive their commissions by appointment by virtue of 

some provision of the Constitution or statute, who 

take the oath of office and are generally required 

to enter Into bond for the faithful performance of 

their duties 1 and such other obligations as~;are 
Honorable 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 asp one 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, 

-to be sure, but exigencies of whatever magnlttiae will not 

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