The Attorney General of Texas 

August 4, 1978 

JOHN L. HILL 

Attorney General 

Honorable Lee H. Smith, President 

Southwest Texas State University 

San Marcos, Texas 78666 

Opinion No. H-1223 

Re: Whether college president 

may participate in universitysponsored continuing education 

program for a fee. 

Dear Dr. Smith: 

You ask whether the President of Southwest Texas State University may 

accept a fee for participating in a university-sponsored continuing education 

program. 

The continuing education programs are funded by the persons attending 

them through the payment of a registration fee. Occasionally, members of 

the university’s faculty, staff, and administration are invited to speak at such 

programs for a fee above the salary provided by contract with the university. 

The Board of Regents, Texas State University System, has recently 

promulgated an order authorizing employees of Southwest Texas State to 

participate in continuing education programs for a fee, limiting the amount of 

time that might be devoted to such activities, and requiring the approval of 

the participant’s supervisor. University administrators must use vacation 

time or adjust their working hours for the periods in which they engage in 

these activities. 

You ask whether the President’s receipt of a fee for participation in 

certain seminars violates any of the following provisions: 

1. The standards of conduct of State officers and 

employees contained in section 8 of article 6252-9(b), 

V.T.C.S. 

2. Article V, S 1.q. of the current General 

Appropriations Act. 

3. Prohibitions against dual office holding found in 

article 16, section 40 and article 6252-9a, V.T.C.S. 

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Honorable Lee H. Smith - Page 2 (H-1223) 

Article 6252-9b declares the policy that no state officer shall have any 

interest which is in substantial conflict with the proper discharge of his duties in 

the public interest. Section 8 of article 6252-9b provides in part: 

(a) No state officer or state employee should accept or 

solicit any gift, favor, or service that might reasonably tend 

to influence him in the discharge of his official duties or 

that he knows or should know is being offered him with the 

intent to influence his official conduct. 

. . . . 

(cl No state officer or state employee should, accept 

other employment or compensation which could reasonably 

be expected to impair his independence of judgment in the 

performance of his official duties. 

The President’s participation in continuing education seminars for compensation 

raises the possibility that these sections will be violated. However, we cannot 

determine as a matter of law whether or not this employment would violate section 

8 of article 6252-9b. That is a fact question, which requires close scrutiny of the 

circumstances of the employment. It is for the Regents to determine, in light of 

the duties of the university president and the policy underlying article 6252-9b. 

See Attorney General Opinions H-696, H-688 (1975). 

- 

Article V, section 1.q. of the General Appropriations Act provides in part: 

None of the funds appropriated to departments and 

agencies covered in Articles I through IV of this Act shall be 

expended for payment of salary to any person whose 

individual line-item exempt salary is being supplemented 

from other than appropriated funds until a report showing 

the amount and sources of salary being paid from other 

sources has been reported to the Secretary of State and 

Comptroller of Public Accounts. 

General Appropriations Act, Acts 19’77, 65th Leg., ch. 872, at 3141. The President 

of Southwest Texas State receives an individual line item exempt salary and is thus 

subject to this provision. & at 3086. See also Educ. Code 5s 51.002(a)(9), 51.006. 

However, we do not believe that money received for participation in a 

continuing education program constitutes a salary supplement. The Texas Supreme 

Court has noted that “a salary is a fixed compensation for regular work.” Wichita 

County v. Robinson, 276 S.W.2d 509, 513 (Tex. 1954). See also Kolcum v. Bs 

Education of Woodbridge School Dist., 335 A.2d 618, 621(Del.uper. 19751 (salary is 

P. 4893 
Honorable Lee H. Smith - Page 3 (H-1223) 

compensation for official or professional services or regular work)., We believe that 

article V, section 1.q. of the appropriations act concerns the payment of extra 

compensation for performing the regular duties of the position. See Attorney 

General Opinion WW-376 (1958). It does not apply to the receipt of compensation 

for services which constitute no part of employee’s duties. We understand from 

your letter that the President of Southwest Texas State has no duty to participate 

in continuing education seminars and would not usually take part in them. He 

participates only at the request of persons organizing the seminar. Thus, any fees 

received for such participation will not be subject to article V, section 1.q. 

Article 16, section 40 of the Texas Constitution prohibits the holding of more 

than one civil office of emolument at the same time. Article 6252-9a, V.T.C.S., 

concerns circumstances under which nonelective state officers may hold other 

nonelective offices. See Attorney General Opinion H-5 (1973). We do not believe 

the President’s particision in continuing education seminars would violate either 

of these provisions. We have said that a university instructor does not hold a civil 

office of emolument. 

here is intermittent. 

Letter Advisory No. 137 (1977). The employment at issue 

See Letter Advisory No. 63 (1973). Even less than 

employment as a universityinstructor can it be said to constitute a civil office of 

emolument. Thus, without deciding whether the President already holds a civil 

office of emolument, we can conclude that his work in continuing education 

programs would not violate prohibitions against dual office holding. 

Finally, we direct your attention to section 36.08 of the Penal Code, in order 

that you may be alert to insure that none of its provisions regarding pecuniary 

benefits to public servants are violated. 

SUMMARY 

The President of Southwest Texas State University is not 

barred from participation in continuing education programs 

for a fee by article V, section 1.q. of the General 

Appropriations Act, article 16, section 40 of the Constitution, or article 6252-9a, V.T.C.S. Whether such participation would violate article 6252-9b, V.T.C.S., is a fact 

question for the Regents to resolve. 

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Honorable Lee H. Smith - Page 4 (H-1223) 

eED: 

/ 

DAVID M. KENDALL, First Assistant 

L&-&iL<~&man 

Opinion Committee ’ 

p. 4895