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### THE ATI?ORNTEY GENERAL OF’ TEXAS

Hon. Geo. H. Sheppard Comptroller of Public Accounts Austin, Texas

Dear Sir: Opinion No. O-1101 Re: Legality of expense account attached. Can the Board of Dental Examiners employ one of its members as Secretary of the Board and pay him a salary out of the General Registration Fund?

Your request for an opinion on the questions as are herein stated has been received by this office.

Your letter reads in part as follows%

"I am enclosing an expense account of Dr. Carl Holder, Secretary, Texas State Board of Dental Examiners, and request your opinion as to whether this'account can be legally paid from the funds appropriated to the State Board of Dental Examiners.

"In this connection I will thank you to advise whether the Board of Dental Examiners may employ one of its members as Secretary of the Board and pay him a salary out of the General Registration Fund."
Article 4543, Revised Civil Statutes, reads in part as follows: 1,

...Before entering upon the duties of his office, each member of the Board shall take the constitutional oath of office, same to be filed with the Secretary of State. At its first meeting the Board shall organize by electing one member President and one Secretary, chosen to serve one year...."
Article 4543,-supra, provides for the appointment and sets out the qualifications of the State Board of Dental Examiners.
The last paragraph of-Article 4550a reads as follows:

"To aid the Board in performing the duties prescribed in this section, the Board is hereby authorized to employ a-- ^

secretary, who shall receive a salarg to be fixed by the Board, and he shall make and file a surety bond in a sum of not less than Five Thousand ($5,000.00) Dollars, conditioned for the faithful performance of all the duties of his office and the safekeeping and proper disbursement of said Dental Registration Fund and all other funds coming into his hands; such salary shall be paid out of said Dental Registration Fund and shall not be in any way a Charge upon the general revenue of the State. Said Board shall employ and provide suoh olerks and employees as may.be.needed to assist the secretary in performing his duties in carrying out the purposes of this Act, provided, that their compensation shall be paid only out of the said Dental Registration Fund. All disbursements from said Dental Registration Fund shall be made only upon thewritten approval of the President and Secretary of Said Board and upon warrants drawn by the Comptroller to be paid out of said Fund."
Section 33 of Article 16 of the State Constitution reads as followsr
"The accounting officers of this State shall neither draw nor pay a warrant upon the Treasury in favor of any person, for salary or compensation asagent, officer, or appointee, who holds at the same time any other office or position of honor, trust, or profit, under this State or the United States, except as prescribed in this Constitution. Provided, that this restriction as to the drawing and paging of warrants upon the Treasury shall not apply to officers of the National Guard of Texas, the National Guard Reserve, the Officers Reserve Corps of the United Sts!tes, nor to enlisted men of the National Guard, the National Guard Reserve, and the organized reserves of the United States, nor to retired of'fLoersof the United States Army, Navy, and Marine Corps, and retired warrant officers and retired enlisted men of the United States Army, Navy and Marine Corps."
Under the provisions of Article 4550a, supra, the State Board of Dental Examiners is authorized to employ a secretary who shall receive a salary to be fixed by the Board to aid the Board in performing the duties prescribed by law.
Artiole 4551 provi.dedthat:
"Each member oftthe State Board of Dental Examiners shall receive for his services Ten($?.O.OO)Dollars per day for each dag he is actually engaged in the duties of his office, together with all legitimate expenses incurred in the performance of such duties. All per diem and expenses accruing hereunder shall be paid from moneys received by said Board from applicants for examination and from the Dental Registration Fund as provided in this law; no money shall e~verbe paid to any member of the Board from the General Fund." (O-1101)Hon. Geo. H. Sheppard, Page 3 , O-1101

The members of the State Board of Dental Examiners hold an office and Position of honor and profit under the State laws, and Article 16, Section 33 of the State Constitution, above quoted, prohibits the aooountlng offioers of the State.from drawing or Paying warrants from the Treasury in favor of any person for salary or compensation asagent, officer or appointee who holds at the same time any other office ore trust or profit, under the State or the United !i osition of honor,

as prescribed in the Constitution. tates, except

On September 22, 1913, this department held in a lengthy conference opinion, written by Ron. C. M. Cureton, First Assistant Attorney General, and Ron. C. W. Taylor, Assistant Attorney General, addressed to the Board of Regents of the University of Texas, that should Mr. Ways accept the position 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 or such position.
We quote from the above mentioned opinion as follows:

"AI-I analysis of the above quoted section of the Constitution (referring to Section 33 of Article 16) results in the following: That theaccounting officers of this State are prohibitedf rom drawing or paying a warrant upon the treasury in favor of any person for (a) salary, (b) compensation; as (1) agent, (2) offioer, (3) appointee, if such person at the same time holds any other (1) office, (2) position of honor, (3) position of trust, or (4) position of profit, under this State or the United States.

"Mr. i&ayesis the Lieutenant-Governor of this State, and under the Constitution asabove quoted and discussed that is an office. It is likewise 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 is a compensation attached to the office of LieutenantGovernor, which, be it great or small, is intended as a remuneration for time devoted to the office.
f!Itisvery clear, therefore, that Mr. Mayes, so long as he is Lieutenant-Governor, could not under the Constitution draw pay from the State as (l)agent, (2) offleer, (3) appointee of the State."
On April 1, 1932, this department held in an opinion written by Hon. Scott Gaines, Assistant Attorney General, addressed to Mr. L. W. Rogers, First Assistant State Superintendent, that a member of the faculty of the State Institution of higher learning cannot legally draw a salary from,the State Government and at the ssme time serve asa school district trustee.Hon. Gee. H. Sheppard, Page 4 , G-1101

On September 10, 1937, this department held in an opinionwritten by H. L. Willlford, Assistant Attorney General, addressed to Hon. 

### Jams V. Allred, Governor, in oonstrueing Senate Bill No, 74, Acts of the Forty-Fifth Legislature, creating State Board of Registration for Professional Engineers and holding that members of the faculties of Texas University, Texas Tech and the State A & M College are ineligible for appointment on said force by reason of Article 16, Section 33 of the State Constitution. This opinion also cites Article 16, Section 40 of the Constitution of Texas, which provides that no personshall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace, County Commissioner, Notary Public and Post Master, etc.
On September 23, 1937, this department held in an opinion written b;-Hon. Scott Gaines, First Assistant Attorney General, addressed to R. L. Bobbitt, Chairman of the State Highway Commission, that under provisions of Seotion 33 of Article 16 of the Constitution a warrant cannot bedrawn upon the treasury in favor of any agent, officer or appointee or a salary or a compensation as such, who, at the same time holds any other office or position of honor, trust or profit under this State or the United States, except certain exceptions therein stated.

In view of theforegoing authorities, you are respectfully advised that it is the opinion of this department that the State Board of Dental Examiners cannot legally employ one of its members as secretary toaid the Board in performing the duties prescribed by law as provided by Article 4550a, supra, and pay him a salary out of the general Registration Fund.

You are further advised that a member of the State Board of Dental Examiners, who, at the same time, holds and exercises the duties of secretary to theboard aw provided by Article 4550a, supras cannot draw pay foreither such office or such position s oblong as he continues to hold the position as secretary to the State Board of Dental Examiners as provided by Article 4550a, supra, and remains a member of the Stats Board of Dental Examiners. Trusting that theforegoing answers your inquiry, We remah
Yours very truly Attorney General of Texas

BY :Zell Williams

Assistant AW:OB bPPRGVED July 31, 1939 IRST ASSISTANT ATTORNEY GENERAL APPROVED Opinion Committee By R. W. F.--chairman.

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

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