HonorableGeorgeW. Cox

State Health Officer Austin, Texas

Deer Sirs Opinion No. O-2471 Rer Should en individual employed by the State who wes celled for a period of 28 days 'training es a reserve officer in the United StatesArmy be ellowed pay from the State for
more then the amount of 12 working dayswhich would be termed es his vacation?

Your recent request for en opinion of this department on the above stated question has been received.

I% quote fromyour letter es follows:
"Should en individual employed by the State,who
wes celled for a period of twenty eight days training
es a Reserve Officer in the U. S. Army, be allowed pey from the State formore then the emotmt of twslvewcrkiag dayswhich would be termed es his vecetim? "Captain Chester Cohen is employed by this depertment es engineer on stream pollutionend is nom in training in San Antonio. He has been assisting cur Engineering Bureau during the time he is off duty while in training.

"A letter is enclosed which has been prepared end simed by Mr. V. M. tihlers, Director of the Bureau of Sanitaryhhginoering in whose division Captain Cohen is employed. This attached letter offers to e degree
an explanation of the serviceswhich were rendered the departmentby Captain Cohen during the abovementioned training period."

we also quote from the letter of Mr. V. M. Ehlers, Director Bureau of Sanitary %ngineering, addressed to Mr. P. A. Kerby, edministretiveAssistant, es fcllcWS:- .

Honorable George W. Cm, page 2 o-2471

"In response to your inquiry about Mr. Chester Cohen's activities during the month of June, please be edvised that Mr. Cohen informedus upon his cell tomilitary duty that hewould be only too happy to keep the stream pollutionwork going while on duty putting in extra time and continuingto direct the stream pollution studies.

"At the beginning of the month he esssmbled the equipment for the mobile stream pollution laboratory located at a convenientplace in San Antonio end also instructedhh-.Berreda in his duties on cclleaticn of samples, records, end the like. Ee spent one day in Houston with Mr. W. C. Geuntt discussingwith him the work that we have underway on meet pecking wastes in that city (see copy of his report.)

"Gn the 15th of this month he ecccmpaniedMr, ?:. J. M. Berg, Superintendentof the City Sewage Treetment Plant of SanAntonio, to Austin for e conference, Earlier in the month he conferredwith Mr. J. 5, Bsrette on the program of solving the sewageproblem of the -hvcLaredo8 (see copy of letter).

"He checked the arrival of all laboratoryequipment

. He transmitted e pictorial survey of the mobile streampollution laboratory. On June 4th ws referred to him e ccmmunioeticnfrom Capt.E. T, Norman steticned et Kelly Field requestingassistance in the rehebilitaticn of several of the Army sewageplants in Sen Antonio. On June 6th we requested that he acnferwith hh-. Terre11 Bartlett, consultingengineer of San Antonio, with reference to the Nixon water supply end
on which he gave us a reporb. On June 5th he transmitted photographsend flcr diagrams to accompany en article on textilemill wastes.'
Section 12 of Article XVI of the Constitutionof Texas prCVidsS8

"Nomember of Congress,nor person holding or exercising any office of profit or trust, under the United States, or either of them, or under any foreign power, shell be eligible es a member of the Legisle-- ture, or hold or exercise any office of profit or trust under this State.'"
This provision of the Constitutionis qualified by recent amendments to Sections 33 end 40 of Article XVI, adoptedNovember 8, 1932. These sections reed:- -

Honorable George R. Cm, pegs 3

**“ Sec.**  **33.** TheAccounting Officers of this State shellneither draw nor pay a warrant upon the Treasury in favor of any person, for salary or compensationes agent, cffioer or appointee,who holds et the same time any other office or position of honor. trust or profit, under this State or the iJnited States, exoept ea prescribed in this Constitution. Provided, that this restriction es to the drawing and paying of warrants upon the Treasury shell not apply to Officers of the National Guard of Taxes, the NationalGuard Reserve, the Officers Reserve Corps of the United States, nor to enlistedmen of the National Guard, the X:eticnel Guard Resezv'e,

and the OrganizedReserves of the lJnited States,nor to retired officers of the United States Amy. Navy, and Marina Corps,and retiredwarrant officers and retired enlistedman of the United StatesArmy, Nevy, end Marine rorps.

**“ Seo.**  **40.** No person shall hold or exercise, et the same time, more than one Civil Offioe of emolument, except that of Justice of Peace, County Commissioner, Notary Publio end Postmaster,Officer of the National **Guard,** the Neticnel Guard Reserve, end the Officers ReserrreCorps of the IJnited States end enlistedmen of the National Guard, the National Guard Reserve, end the OrgenizedResellres of the United States, end retired officers of the United StatesArmy, Nevy, and Marine Corps, end retired werrent officers, end retired enlistedmen of the United StatesArmy, Navy, and Marine Corps,unless otherwise speciallyprovided herein. Provided, that nothing in this Constitution shell be construed to prohibit an officer or enlisted men of the NationalGuard, and the NationalGuard Reserve, or an officer in the OfficersReserve VW-pa of the United States, or en enlistedmen in the OrganizedReserves of the United States; or retired officers of the United States Army, Navy, and Marine Corps, endretired warrant officers, end retired enlistedmen of the IJnited States Army, Nevy, and Marine Corps, from holding in conjunction with such office any other office or position of honor, 'trustor profit,under this State or ths United States, or from voting at any Election; General-, Special or Primary, in this State when otherwisequalified."

We quote from cur OpinionNo. O-2426, as follows:

"It is clear that under Sections 33 end 40 of Article XVI of the Constitutionof Texas, end the departmantel payroll affidavit interpreted in the light of these acnstituticnalprovisions,en officer in the OfficersHonorable GeorgeW. Cm, page 4 o-2471

Reserve Corps of the United Statesmay hold in oonjunction with that offiae any other position of honor, trust or profit in the State of Texas. and may receive salary
or compensationfor the same.

"You are accordingly advised that employees of the Board of InsuranceCommissionerswho are Reserve Officers in the United States Army may continue receiving their salary from the State of Texas lrhile011 active duty during their vacation, and under the circumstancesdescribedyou may make the payroll affidavit requiredby the Comptroller."

n

. . . . .
"You are advised that this Seotion of the Departmental ,Approprietion

Billmust be strictly compliedwith and State employees are limited to Twelve days'vacation, exclusive of Sundays and legalholidays, without deduction in salary."

In this connectionws call your attention to that porti.on of Section 2 of the DepartmentalAppropriation Bill, Senate Bill 427, pacts 1939, 46th Legislature,dealingwith vacation allowance for State employees,which provides as followsr

"VacationAllowance. Department employees shall, without deduction in salary, receive not exceeding twelve days'vaoation, exclusive of Sundays and legal holidays,
on which State offices sre olosed, for each State fiscal year, suohvacation period to be mutually agreed upon by the head of each departmentwith his employees,provided, that employees belonging to the Texas fiational Guard may have their vacation at the time of the meeting of the annual enoampnent. Provided, that no employee forwhom a salary is hereby appropriated, shall receive compensation while onvacation unless he or she has been an employee of the department for not-less than six oalendarmonths precedingthe vaaation period."

We are enclosingherewith a oopy of our Opinion Iio, O-2426 for your convenienoe.

We callyour attention to that portion of the DepartmentalPay - roll Affidavit required by the Comptrollerof Publia Accounts to be made by the head of each State Departient,whioh reads as follows:

I'*+ + and that none of the employees on this payroll *re receiving salary or compensation,as agent, officer,
or appointeewho 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 the State Constitution.'HonorableGeorge W. Cox, page 5 O-2471

Seotion B of the rider to the DepartmentalAppropriation Bill, under the head of salaryand other provisions,p0 147, Senate Bill &lo. 427, Acts 46th Leg., 1939, reads in pert es follows:

"No salary forwhich en appropriationis made herein shell be paid to any person unless suah person actually dischargesassigned duties, hverymonth the head of each department shall attaoh to the payroll for his dapar+8sent
en affidavit,under oath, stating that the person8 listed in said payroll actually performedthe duties for whioh they wers being paid. The Comptrollershell not issue warrants for the payment of salaries listed on said peyroll unless this affidavit is filed with him, Eeoh departmenthead shallnumber aonsecutivelythe salaried positions in his department for which an appropriation is made herein (eitherout of the Ceneral~ Revenue Fund, fees, receipts, speoial funds or out of other funds available for use by said department)and opposite the number of the position, he shell set out the title of the position end the name of the person employed to fill the same, This ststement shall be filedwith the Comptroller,who shell,when issuinghis warrant to any employee in payment of salary due said employee.number the warrant with the semenumber that is assigned to the position filled by said employee. Every departmenthead shell notify the Comptrollerin writing of any changes in personnel in his department. This provision shell not apply to seasonalhelp, end shallnot prevent persons drawing their salary warrants during authorizedvacation periods,"
Employees are required to perform the duties and render the services as requiredby the heeds of the various departmentsand tihen the head of such departmentmakes the affidavit es abovementioned, stating that the employeehas performed the duties assigned to him then such mployee would be entitled to his compensationas such. It is true that employeesare limited to twelve days vacation exclusiva of Sundays and legal holidayswithout deduotion in salaryj however, this iswhere the employee performsno duty or renders no services end is errtitled to his aompensationnotwithstandingthat he has performedno duty or renderedno serviae.

Trusting that the foregoing fully answers your inquiry,we are

Yoursvery truly
ATTORNXY GISNhRAL

OF TEXAS
AW:L1#:wc APPROVED JLKY 11, 1940 s/Grover Sellers By s/!Ardell Williams Ardell Yiilliams FIRSTASSISTANT ATTORNEYGENERAL ~Assistant This Opinion Consideredand Approved In Limited Conference