my 6, 1959

Hon. R. H. Cory, Chairman OpinionNo. w-619 Stat@Affairs Committee House'of Representatives Re: Constitutionalityof House 56qh Legislature, Bill No. 495 and pending Austin, Texas committeeamendment to said Bill and related questions. Dear Mr. Gory:

The StateAffairs 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,anda pending commltte,e amendment to the bill. Your request for an opinion asks the following questions:

,111.Request a.rullng on ,theconstitutlonality ef H.B. 495. "4.' Request a ruling as to whether or not teachers,adminlatratorsjand supervisorsIn our state-supportedcolleges,universities,public junior colleges and public schoolsare holders of 'publlobrustl within themeaning 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 legislationfor 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 originalbill and,the' pending committeeamendment,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 requiredas a qualification to teach or'instruct in the Public Schools, Public Junior College or State Colleges or Universities of this State;nor shallanyone be excluded from holding said job or position on account of his religious sentiments,providedhe acknowledge the existence of a Supreme Being." Section 2 requires each teacher, instructorand professor to acknowledgeunder oath his belief in a Supreme Being at the beginning of each schoolyear as a condition to his employment or retention. Section 3 imposes a penalty for violation of the act of $100 to $1000 fine.

The committeeamendment,which containsa complete substitute for the bill, provides in Section 1 as follows:

"No religious test shall ever be required as a qualificationfor adminlstratlveand 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 ,adminlsterin 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 employeesnow under contractneed not give the oath until completion of their contract term. No criminalpenalty is provided, but Section 4 provides that no State funds shallbe paid as salary or other compensation in the absence of compliance with this Act.

Section 1 ofArticleVII of the Constitution of Texas renders it mandatory that the Legislature "establishand make suitableprovision for the supportandmaintenance of an efficient system of public free schools." Under this section the Legislaturehas the power to do anything not otherwiseprohibited 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 Constitutionsguarantees to the individual certain inalienable rightswhich both the courtsand the legislative bodies of the nation have traditionallyguarded. Included is the right of the individual to think and believe onmatters both temporal and spiritual in accordancewith 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 personmay think, believe, or act as he may choose without affecting rights to public provileges to which he might otherwisebe entitled. This limiting factor was illustrated by Justice Holmes in an early casewhen he declared that the appellant, a policeman,had a constitutionalright to believe as he may wish, but he had no constitutionalright to be a policeman. This legalprinciple 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 constitutionalright to be employed as a teacher in the public schools,as such employment is not an uninhibitedprivilege, and he has no right to serve except on such terms as the stateprescribes.

. . . Subject to such limitationsas may be imposedby the Constitution, the power to fix the qualifications of teachers may be exercisedby the legislature or by school authoritiesunder and within the limits of the authority conferredby statute.
. . . In the exercise of its power, the statemay require as qualificationsand 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 governmentbx force, violence or other unlawfulmeans. . . . 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 employingauthority, thusly:

"It is clear that suchpersons (schoolpersonnel),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.

Itmust necessarily follow from what we have said that, unless prohibitedby some specificprovision 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 FourteenthAmendment 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 SupremeBeing." The earlier Constitutions of Texas simplyprovided that no religious test should ever be required as a qualification of any office or public trust. The languagewas virtually identical to that of Clause 3 of ArticleVI of the Constitution of the United States as now written. The Constitution of 1876, however, added the provision "nor shallanyone be excluded from holding office on account of his religious sentiments,provided he acknowledge the existence of a SupremeBeing."

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 latterbeing.; -

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

stillgovernedby the "no religious test" provision. We are unable to agree with this conclusion.

We have reached the conclusionthat the words "provided he acknowledge the existence of a SupremeBeing"modify Section 4 of Article I In its entirety,and not just the last clause thereof. It is evident from reading the committeeamendment to H.B. 495 that the committeemust have reached the same conclusion. A semi-colon separates the two clauses in the constitutionalprovision,but the committeeamendment,which follows the constitutional languagevery closely, omits the semi-colon and uses only commas, Section 1 of the committeeamendment 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 languageused. The first clause,preceding the semicolon, forbids theuse of,areligious 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 qualificationsfor 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 personsmay be excluded from office under the second clausewould create a conflictbetween 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 agreementwith that which has gone before. If a repugnantprovision 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 sectionas a complete, integrated sentence, with no conflicts,but with an exceptionat 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 Isatrue that the provlslon in queetion is net souahed in the cleorert language, and the punctuation mayleave 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 nJcthat’ the flrst~ part of the eeeond elmwe ‘was added merely for emphaile, and the net effect of the constitutional provleloa Is that,no person IMYbe 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 whywethink the bill and its amendmentare 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 meanthe holding of Bpositian of, public trust ‘.a8well 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 beammade 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~nderc&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 OpinionNo. O-2701,written by HonorableWilliam J. Fanning, formerly an AssistantAttorney 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 certainoersons Indebted to the State ineilgible for "any office of p&oflt or trust under the State Qovernment."

The case of Orndorffv. 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 commissionermay not be an officer 'of'the State Government,he does hold an,office of trust and profit 'underthe 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 officewhen 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
. . 0a right and corresponding duty to executea 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', 'publicoffice', and 'publicofficer!,as used In statutes and Constltutlons. They are terms of vague and variant import, themeaning 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, regardmust be had to the intention of the statuteand the subjectmatter in reference to which the terms are used." Section 8 of the above citation states: "TheAmerican 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: "Withus, 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:

"Constitutionsand 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 linebetween 'offices'and 'placesof trust or profit' within the meaning of suchprovisionshas not been clearlymarked, and they may be consideredas approaching each ,otherso closely that they are in all essential features Identical."
Our office held in OpinionNo. V-32.5that college professors, as well as public school teachers, hold positions of "honor, trust or profit". We are also of the opinion that administrators and supervisorsIn 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 linewith the authoritiesabove quoted, that the words "holding office" in the second clause of the constitutionalprovision 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 denominatedan "office". We can perceive of noHon. R. H. Gory, Page 9 (WW-619)

substantialreasonwhy the framers of our Constitutionwould be concerned overwhether or not "officers"believe in a Su,- preme Being and yet not be equally concernedas to whether or not persons holding equally Importantpositions calledpositions of "public trust" shouldbelieve in a Supreme Being.

We point out what we considera possible flaw in the caption of the committeeamendment which could impair the validity of the bill due to conflictingprovisions. We refer to the portion requiring teachers, etc. Etaacknowledge the exist-. ence of a Supreme Being but that no religious test.shallbe 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 'religioustest'. If i.tis 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 suggestionthat 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, settingup 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: insfitutionsmust acknowledge the existence of a SK,-, preme Being as a condition of employment,are constitutional. Such teachers, administ,rat:ors and supervisorsare 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 legislationunder the saidprovision of the Constitution.
Yours very truly,
WILL WILSON Attorney General, of TexasHon. 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

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