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Honorable Geo. Ii.Sheppard Comptroller of Public Accounts Austin, Texas
Dear Mr. Sheppard: Opinion No. O-5123
Re: Authority to issue warrant to James Taylor as Parliamentarian to the Senate, Mr. Taylor holding at the same time a position with the Old Age Assistance Department as AdministratSve Assistant.
Your request for an opinion upon the above subject matter is as follows: "During the months of January and February of this year James Taylor was carrfed on the pay roll in the Old Age Assistance Department as administrative assistant at a salary of $250.00 per month, payable out of the Federal ChEl.drenAssistance Fund. Warrants were issued, by thi.s department pays,bleto James Taylor for each month's salary for January and February. When the Forty-eight Legislature convened the same Jn_MesTaylor went on the pay roll of the Senate as Parliamentarian and was paid a per diem of $7.50 per day out of the Contingent Expense appropriation. On February 28 this department was informed that James Taylor was on the pay roll of both the Senate and the Old Age Assistance Commission, and called the same to the attenticn of Nr. Taylor, who returned the General Revenue warrants i.ssuedto him in pay-me& for his services in the Senate for cancellation. "This department is also informed that Mr. Taylor has severed his connection with the Old Age Assistance Commission and is still employed by the Senate as Parliamentarian. This department now has presented the Senate pay roll for the first twelve days in March. aj-sthis department authorized to issue warrant in payment of the amount shown on the Senate pay roll due Mr. Taylor for per diem for the first twelve days in March?"
In connection with the letter, you have advised US personally that Mr. Taylor severed his connection with the Old Age Assistance on March 1, 1943.Honorable Geo. H. Sheppard - page 2 O-5123

You state thatMr. Taylor "returned the GeneralRevenue warrants issued to him in payment for his service in the Senate for cancellation.llFrom this we assume that he has returned for cancellation all warrants for services in the Senate for both January and February. Section 33 of ArticleXVI of the Constitutionprovides: "TheAccounting Officers of this State shallneither draw nor pay a warrantupon the Treasury infavor of any person, for salary or compensationas 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. * * *."
It appears that Mr. Taylor did, during the months of January (from the 12th) and February, occupytwo offices or positionsunder the State, inviolation of the above Section, having terminatedhis serviceswith the Old Age AssistanceMarch 1, as above stated. Mr, Taylor has been paid for his service to the Old Age Assistance the sum of $500,00 for the months of Januaryand February, and no part of that sumhas been repaid to the State. This presents the real questionfor our decision -- that is,whether or not he is entitled toreceive suchpaymentwhile he was holdingat the same time the position of Parliamentarian to the Senate from and after his engagement in January. This precise questionwas decidedby this department in an elaborate opinionby First AssistantAttorne General C. M. Cureton and AssistantAttorney General, C. W. %aylor, Attorney General, 1912-1914,p* @73)* J&e 9$ 1913. (Oiinions

That was a case involving' the right of Lieutenant-Governor,Will H. Mayes, toaccept the position of Professor of Journalism in the StateUniversity,while at the same timeholdinghis position as Lieutenant-Governorof Texas*
In the course of the opinion it was said:
"It is very clear, therefore,that Mr. Mayes, so long as he is Lieutenant-Governor,couldnot under the Constitutiondraw pay from the State, as (1)agent, (2)officer, (3)appointee of the State. "Aswe have above endeavored to show that a professor in the University of Texas is an appointee or in a limitedsense an agent, therefore,Mr. Mayes couldnot draw a salaryfrom the State as professor of Journalism in the University, '*The converse of the above proposition is also true, and, therefore,Mr. Mayes, so long as he was theagent or appointee of the State as a professor of Journalism in theUniversity, couldnot draw his pay as Lieutenant-Governorof the State, thatHonorable George H. Sheppard, - page 3, O-5123

being an officewithin the meaning of the Constitution0 "Therefore, shouldMr. Mayes 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 couldnot draw pay for either such office or such position." This rulinghas never beendeparted from but has been adhered to subsequentrulings of this department,and is thoughtby us to be a true constructionof the Constitution. herewith) (SeeopinionNo. O-2607

From this reasoning, itwould follow that any sums paid toMr. Taylor for his service to the Old Age Assistance,since thedate of his employmentand acceptance of the position of Parliamentarian to the Senate has been unlawfullymade, and he is therefore indebted to the State in that sum. Article 4350 of the Revised Civil Statutesprovides tkt:
"No warrant shallbe issued toany person indebted to the State, or to his agent or assignee,until such debt is paid." So that, it followsno warrant should in any eventbe issued or paid toMr. Taylor on account of his services to the State Senate, or on any other account, until such sum so illegallypaid to him hasbeen repaid to the State.Very truly yours ATTORNEY GEIURAL OF TEXAS s/ Ocie Speer
BY Ocie Speer

Assistant

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MARCH 1.7,1943 .F/ GROVER SELLERS FIRSTASSISTANT !TTORNEYGENERAL