_. 

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 the written 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 as agent, 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'fLoers of 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.ded that: 

"Each member oft the 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~ver be 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 as agent, 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&ayes is the Lieutenant-Governor of this State, and 

under the Constitution as above 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!It is very 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 be drawn 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 the foregoing 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 the board 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 the foregoing answers your inquiry, We remah 

Yours very truly 

Attorney General of Texas 

BY 

:Zell Williams 

Assistant 

AW:OB 

b 

PPRGVED July 31, 1939 

IRST ASSISTANT ATTORNEY GENERAL 

APPROVED 

Opinion Committee 

By R. W. F.--chairman 
. 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 
Artlolo 4Sbbl prooldeo that oeoh saber or 

t& Stat0 Boar4 0r Dental iExaminare shall roooire r0r 

hla aerolaaa $10.00 par day ror eaah day he ia sotire4 r Dsa l d..~.~,.Quk iea ..o L,,~,orrdth la a ..~a Lbr 

a11 lag 3 tlrrt8'6xp6aoeo in~urmd ia tho porforaaaaa 

o? suoh dutlea. 

hrtiale 455Oa authorizes the Stat6 Board of 

Dental Exnmla6ra to omploy a aearetaxy, to aid th6 Board 

ln porSomSag ~+ha: 6~4lo@..p~~oribe6 b7 law, ad. the raly 

of rruoh aeant6Ty rhrll k tlud~ by the Boar+&, ati mob 

rsarefa~ ahall nab and fllo a auroty boa4 ln th a l m 

oi 13Ot..;kU .thO&&,~o,~ .ditblL6h;iW:bb~%6ibhfUi 

parrormanoo of &ll fhs a&" of hlr oifloo in tho MiOkeeping and propor Qlaburaawnta oi the Dantal,Reglatratlon 

Fund and ell other fun48 aomlng into hi6 hands. 

sootloa 3 0r Alrtlols a71a provld*a that: 

*A Stata Board of Ragl~tratioa ror Prorasslonrl Ra&mera is her'8by oreatod whore 

autx..itsbrU by t9 .a$alaiat6r thcpmykloar 

or Chin A&t;* 

Seotloa S or Art1010 3371~1 provid6s that 88oh 

Seotloa 0 0r Article 3S7la protides the tha 

Seoretary ot the Board #hall mosl~o a aalar se the Board 

ahall 4ete& In addltlon to the oosaperuat I on an4 SXp6nses provldad for in the Aat. 

Regarding tha State Roar4 of Reglatretion for 

z+roroeaional 2znglatber0, lt ir mfmltest that one nnabar 0r 

thei Roar4 has the dutiu of l earetary of g\toh Borrrd ox 

orriiaio,~ ma the k19.t aret~.tho Ramd *i Ro&a4ro4lon, 

above rer6rre4 to; prorid rOr a per Ulem oompaaation 

ror muoh 8srb0r, ror uo rxpouo or au08 wmb6r, ud to+ 

the ralarp of, su.o&~~~r, r&I o$ whlob,$ rar~ecapotui~ 

for’ tlie Lagl8latum $a pr6aorlb6 and mu0 3 . 

The l te$utea 40 not provide that the Seorstary 

of the State Eoer4 0r Dentel 3mmlnere shell reoelre any 

salary in addition to his per diem OOmp0AsatiOn, 9~hile on 

the' other head, the a.tatutea do.provlde that the Seorstary