my 6, 1959 

Hon. R. H. Cory, Chairman Opinion No. w-619 

Stat@ Affairs Committee 

House'of Representatives Re: Constitutionality of House 

56qh Legislature, Bill No. 495 and pending 

Austin, Texas committee amendment to said 

Bill and related questions. 

Dear Mr. Gory: 

The State Affairs Committee of the House has requested, 

through you as ChaIrman of .the,Commlttee, the opinion of the Attorney Qeneral relative to the constitutionality,, of House Bill 

No. 495,and a pending commltte,e amendment to the bill. Your request for an opinion asks the following questions: 

,111. Request a.rullng on ,the constitutlonality ef H.B. 495. 

"4.' Request a ruling as to whether or not 

teachers, adminlatratorsj and supervisors In our 

state-supported colleges, universities, public 

junior colleges and public schools are holders 

of 'publlo brustl within the meaning of Article 

I, Section, 4, of the Constitution of The State 3 

of Texas. 

“3. Request an opinion on whether or not 

H.B. 495 Is enabling legislation for Article I, 

Section 4, of the Constitution of the State of 

Texas. tz 

"4. Request that the ~op'lnlon~ rule on above 

three points on both the original bill and,the' 

pending committee amendment, which Is a complete 

substitute.;" 
Hon. R. H. Cory, page 2 (w-619) 

Section 1 of H.B. 49.5 provides as follows: 

"No religious test shall ever be required as 

a qualification to teach or'instruct in the Public 

Schools, Public Junior College or State Colleges 

or Universities of this State; nor shall anyone 

be excluded from holding said job or position on 

account of his religious sentiments, provided he 

acknowledge the existence of a Supreme Being." 

Section 2 requires each teacher, instructor and professor to acknowledge under oath his belief in a Supreme Being 

at the beginning of each school year as a condition to his employment or retention. Section 3 imposes a penalty for violation of the act of $100 to $1000 fine. 

The committee amendment, which contains a complete 

substitute for the bill, provides in Section 1 as follows: 

"No religious test shall ever be required as 

a qualification for adminlstratlve and supervisory 

employees in the public schools, public junior 

colleges or state colleges or universities of this 

State, nor as a qualification to teach, instruct, 

supervise or ,adminlster in such institutions, nor 

shall anyone be excluded from holding any of said 

positions on account of his religious sentiments, 

provided he acknowledge the existence of a Supreme 

Being." 

Sections 2 and 3 require the oath as a condition of 

employment or re-employment, but indicate that teachers and 

other employees now under contract need not give the oath until 

completion of their contract term. No criminal penalty is provided, but Section 4 provides that no State funds shall be paid 

as salary or other compensation in the absence of compliance 

with this Act. 

Section 1 of Article VII of the Constitution of Texas 

renders it mandatory that the Legislature "establish and make 

suitable provision for the support and maintenance of an efficient system of public free schools." Under this section the 

Legislature has the power to do anything not otherwise prohibited by the Constitution in order to discharge the duty placed 

upon it. Glass v. ~001, 166 s.w. 375, 106 Tex. 266. 

5 
.- - 

Hon. R. H. Cory, page 3 (w-619) 

The Bill of Rights embodied in both our State and 

Federal Constitutions guarantees to the individual certain 

inalienable rights which both the courts and the legislative 

bodies of the nation have traditionally guarded. Included is 

the right of the individual to think and believe on matters 

both temporal and spiritual in accordance with the dictates of 

his own conscience. Implicit In the right to believe is also 

the right to disbelieve. It does not necessarily follow, however, that a person may think, believe, or act as he may choose 

without affecting rights to public provileges to which he might 

otherwise be entitled. This limiting factor was illustrated 

by Justice Holmes in an early case when he declared that the 

appellant, a policeman, had a constitutional right to believe 

as he may wish, but he had no constitutional right to be a 

policeman. This legal principle is announced and followed in 

a number of cases, both federal and state. 

The rule is announced in 78 C.J.S., Schools and School 

Districts, Section 154, as follows: 

"A person has no constitutional right to be 

employed as a teacher in the public schools, as 

such employment is not an uninhibited privilege, 

and he has no right to serve except on such terms 

as the state prescribes. . . . Subject to such 

limitations as may be imposed by the Constitution, 

the power to fix the qualifications of teachers 

may be exercised by the legislature or by school 

authorities under and within the limits of the 

authority conferred by statute. . . . In the 

exercise of its power, the state may require as 

qualifications and declare as disqualifications, 

factors other than scholastic, including as a 

qualification, adherence to the form of government of the United States, or a loyalty oath, and 

as a disqualification, advocacy of the overthrow 

of the government bx force, violence or other unlawful means. . . . 

See also: Board of Education of City of Los Angeles 

v. Elsenberg, 277 P.2d 943; Adler v. Board of Education of City 

of New York, 342 U.S. 485; Marrs v. Matthews, 270 S.W. 5% (Tex, 

Civ,App. 1925); Board of Education of City of Los Angeles v. 

Wilkinson, 270 P.2d 82; City of Amarillo v. Hancock, 239 S.W,2d 

788 (Tex.Sup.); Fuller v. Mitchell, 269 S.W.2d 51'( (Clv.App. 

1954, error ref., n.r.e.). 
Hon. R. H. Cory, page 4 (w-619) 

In the Adler case, supra, the Supreme Court of the 

United States, pei;Ji;i?tice Minton, described.the obligations 

of teachers to the State, as their employing authority, thusly: 

"It is clear that such persons (school personnel), have the right under our law to assemble, 

speak, think and believe as they will. . e . It 

is equally clear that they have no right to work 

for the State in the school system on their own 

terms." 

Of similar import is the language of the Texas Court of Civil 

Appeals in Marrs v. Matthews, supra. 

It must necessarily follow from what we have said 

that, unless prohibited by some specific provision of our 

State Constitution, both House Bill 495 and its pending amendment are constitutional. The bill does not, in our opinion, 

contravene the general guarantees of personal religious freedom as contained in either the Fourteenth Amendment of the 

United States Constitution or Section 6 of Article I of the 

Texas Constitution. The authorities cited, we believe, sustain 

this view. 

There remains the question of whether the proposed 

legislation is repugnant to Section 4 of Article I of the Constitution of Texas, which provides: 

"No religious test shall ever be required 

as a qualification to any office, or public trust, 

in this State; nor shall any one be excluded from 

holding office on account of his religious sentiments, provided he acknowledge the existence of a 

Supreme Being." 

The earlier Constitutions of Texas simply provided 

that no religious test should ever be required as a qualification of any office or public trust. The language was virtually 

identical to that of Clause 3 of Article VI of the Constitution 

of the United States as now written. The Constitution of 1876, 

however, added the provision "nor shall anyone be excluded from 

holding office on account of his religious sentiments, provided 

he acknowledge the existence of a Supreme Being." 

It has been suggested that the effect of this added 

provision was to make it possible to exclude atheists from public "office" , but not from a "public trust", the latter being 
.; - 

Hon. R. H. Cory, page 5 (W-619) 

still governed by the "no religious test" provision. We are 

unable to agree with this conclusion. 

We have reached the conclusion that the words "provided he acknowledge the existence of a Supreme Being" modify 

Section 4 of Article I In its entirety, and not just the last 

clause thereof. It is evident from reading the committee amendment to H.B. 495 that the committee must have reached the same 

conclusion. A semi-colon separates the two clauses in the constitutional provision, but the committee amendment, which follows 

the constitutional language very closely, omits the semi-colon 

and uses only commas, Section 1 of the committee amendment is 

quoted at length near the beginning of this opinion. We quote 

the material provisions: 

"No religious test shall ever be required as 

a qualification for . . . employees . . a) nor as a 

qualification to teach, . . . in such institutions, 

norshall anyone be excluded from holding any of 

said positions on account of his religious sentiments, provided he acknowledge the existence of a 

Supreme Being." 

It seems to us that the word "nor" in the Constitutional provision furnishes the key to the proper interpretation 

of the language used. The first clause, preceding the semicolon, forbids theuse of,a religious test as a qualification for 

any office or public trust. Standing alone, such a provision 

would certainly limit the power of the Legislature in setting 

up qualifications for office. Now, if we assume that belief 

in a Supreme Being is R religious test within the prohibition 

in the first clause, and that the proviso only refers to the 

second clause, then the fact that persons may be excluded from 

office under the second clause would create a conflict between 

the two clauses, or at least clause number two would be an 

exception to clause number one. 

It is at this point that the word "nor" assumes critical importance. The word "nor" is expressive of the fact that 

the words which follow it will be in general agreement with that 

which has gone before. If a repugnant provision such as an exception is to follow, it is our opinion that the only logical 

word to use would be "but", or 'Ihowever", or "providedU, or some 

other word of similar import. On the other hand, if we consider 

the constitutional section as a complete, integrated sentence, 

with no conflicts, but with an exception at the end which is 

applicable to all that has gone,before, then the use of the word 
. , 

” . 

Bon. R. H. aory, page 6 (w-619) 

*nor* becomea understandable . It Isa true that the provlslon 

in queetion is net souahed in the cleorert language, and the 

punctuation may leave something to be desired, but the intent 

and purpoae of the framers of our Constitution Is clear, The 

seoond clause before ‘the proviso adde nothing newi since ‘Irellglous @entlments” is a.ertainl 

llgiou~c+ teat”.; 9 

inaluded within the,‘terin “FeWe .th,eretore th nJc that’ the flrst~ part of the 

eeeond elmwe ‘was added merely for emphaile, and the net effect 

of the constitutional provleloa Is that,no person IMY be diequalified for, public offloe or publlo truet as ‘long 8~ he acknowledges them exletence,of~a Swreme Being. It folloWa that 

we are of’ the opinion that H.B.’ $ 95 and~the committee amegdment 

thereto are not In violation of’ Seotlon.4 ol' AtitlolC'I or the 

Texae Conetltutlon. 

‘There is another reason why we think the bill and its 

amendment are oonstltutlonal. The flret clause of the oonntltutlonal provision refers to “any, ofiioe, or public trust”. The 

second cluase refers to “holding offloe”; For the reason@ stated 

below, we are of the opinion that the words “holding offloe” are 

used in the,senee that they mean the holding of B positian of, 

public trust ‘.a8 well as the holding cl t&t ‘whlsh,ie teohniaally 

denominated an.“offloe”. ,If the Intention of the seoond clause 

of ,the provision had been to refer only to an “of’flce” (md to 

exalude,a “public trust”,from its provision, we think It ~moat 

likely that some reference to the term “publlo trust” would 

have beam made In the eecond olauare, No euch reference,was made. 

This offlce has consistently used the terms “offloe” 

and “public Crusti” interohangeably, Consider for example: 

In Attorney Oeneralfa Opinion No, v-834, we said: 

‘%emberahlp on ‘the b&d ‘of truateee ‘of ai 

Independent sahool dietriot la’en office. .., 

Btit a tz+uaate& of an lndeaendent aahool dietM,oi 

hold8 an office of honor-and ttiu#t wIthin the 

meaning ior Section 33 Of Article XVI of the Texas 

Conetltutlon,” 

Attorney ffeneral’s Opinion No. C-1422,involved a local 

sohool board,, a a.ollege bbard and a U.S. Poetmaster., It stated8 

“There -aam bb, tie :doubt ,that ‘aLI -three’ oi ~the 

offices here u~nder c&sLderatlon ape positlone~of 

honor, trust or prbfl,t wlthitj the meaning of’ the 

above quoted aenstl.%filonal provlalon.” 

. . % 
. 

Hon. R. H. Gory, page 7 (w-619) 

In Attorney General's Opinion No. O-2701, written 

by Honorable William J. Fanning, formerly an Assistant Attorney General and now a Justice of the Texarkana Court of Civil 

Appeals, it is said: 

"There can be no doubt that a trustee of an 

Independent school district holds an office of 

honor and trust within the meaning of Article 

XVI, Section 33 of our State Constitution." 

The Texas Constitution so uses the words. Article 

III. Section 20. makes certain oersons Indebted to the State 

ineilgible for "any office of p&oflt or trust under the State 

Qovernment." 

The case of Orndorff v. State, 108 S.W.2d 206, 209 

(Tex.Civ.App. 1937, error ref.),in construing the constitutional 

provision aforesaid, stated: 

"It follows, necessarily, that though, within 

the contemplation of certain statutes, a county 

commissioner may not be an officer 'of' the State 

Government, he does hold an, office of trust and 

profit 'under the State Government'." 

In 67 C.J.S. 96, Officers, Section 1, it is said: 

"The term 'office' is one which is employed 

to convey various meanings, and no one definition 

thereof can be relied on for all. purposes and 

occasions. It has been said that, when used in 

any proper sense, the term implies a duty or 

duties to be performed, and that it Is generally 

agreed that a position Is an office when the 

elements of trust, honor and compensation combine with definite duties and responsibilities. 

An office has been defined as a duty, charge or 

trum a place of trust . . 0 a right and corresponding duty to execute a public or private 

trust . . .,'I etc. 

In 42 Am.Jur. 879, Section 2, it is sta,ted: 

"There are numerous and varied definitions 

of the terms 'office', 'officer', 'public office', 

and 'public officer!, as used In statutes and 

Constltutlons. They are terms of vague and variant import, the meaning of which necessarily 
. 

Hon. R. H. Cory, page 8 (WW-619) 

varies with the connection in which they are used, 

and, to determine it correctly in a particular 

instance, regard must be had to the intention of 

the statute and the subject matter in reference 

to which the terms are used." 

Section 8 of the above citation states: 

"The American concept of a public office is 

that of a public agency or trust created in the 

interest and for the benefitthe people." 

Section 9 provides: 

"With us, public offices are public agencies 

or trusts. . . .' 

What we have been trying to Illustrate is perhaps 

best pointed out in the following quotation from Section 23 

of the same authority: 

"Constitutions and laws sometimes contain 

provisions applying to lucrative offices, and 

offices of trust, honor and profit. The courts 

have been called upon to define these terms. 

. . . The line between 'offices' and 'places of 

trust or profit' within the meaning of such provisions has not been clearly marked, and they 

may be considered as approaching each ,other so 

closely that they are in all essential features 

Identical." 

Our office held in Opinion No. V-32.5 that college 

professors, as well as public school teachers, hold positions 

of "honor, trust or profit". We are also of the opinion that 

administrators and supervisors In State supported colleges, 

universities, public junior colleges and public schools come 

within the same category. We accordingly answer your second 

question in the affirmative. 

We also hold, in line with the authorities above 

quoted, that the words "holding office" in the second clause 

of the constitutional provision In question were used by the 

framers of the Constitution in the sense of holding a position of "public trust" as well as holding that which may technically be denominated an "office". We can perceive of no 
Hon. R. H. Gory, Page 9 (WW-619) 

substantial reason why the framers of our Constitution would 

be concerned over whether or not "officers" believe in a Su,- 

preme Being and yet not be equally concerned as to whether or 

not persons holding equally Important positions called positions of "public trust" should believe in a Supreme Being. 

We point out what we consider a possible flaw in the 

caption of the committee amendment which could impair the validity of the bill due to conflicting provisions. We refer to 

the portion requiring teachers, etc. Eta acknowledge the exist-. 

ence of a Supreme Being but that no religious test. shall be required.' We have not found it necessary in this opinion to pass 

upon the question of whether or not the oath requirement in t.!~ie 

bill is a 'religious test'. If i.t is a 1 rel,igfcils ,tesC, !, there 

would be a conflict in the caption, Becalzse the issue is not 

free from doubt, it would be our suggestion that the capti%? be 

amended so as to eliminate this possible conflict. 

It follows from what has been said that we are of the 

opinion that, with the exception of the possible defect. in the 

caption above pointed out, H.B. 495 and the committe& substitute 

therefor are constitutional. The bill Is in t,he nature of enabling legislation, setting up the meehani.cs for applying the 

permissive exclusion from employment of those who decline to 

acknowledge the existence of a Supreme Being, 

SUMMARY 

H.B. 495 and the committee substitute ,t:her+ 

for requiring that teachers, administra~tors and 

supervisors in State-supported educationa: insfitutions must acknowledge the existence of a SK,-, 

preme Being as a condition of employment, are 

constitutional. Such teachers, administ,rat:ors 

and supervisors are holders of "public trust:" 

within the meaning of Article I, Ses'lion 4 3f We 

Texas Constitution. Such l~egis:lati:n is in the 

nature of enabling legislation under the said provision of the Constitution. 

Yours very truly, 

WILL WILSON 

Attorney General, of Texas 
Hon. R. H. Cow, page 10 (W-619) 

APPROVED: 

OPINION ,COMMITTEE 

Geo. P. Blackburn, Chairman, 

H. Grady Chandler 

L. P. Lollar 

Ralph Rash 

JlE'VIElWED FOR THE ATTORNEYGENERAL 

BY: 

W. V. Geppert 

. .