Honorable George W. 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 States Army be ellowed pay from the State for 

more then the amount of 12 

working days which 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 from your 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 for more then the emotmt of twslve wcrkiag days which would be termed es his vecetim? 

"Captain Chester Cohen is employed by this depertment es engineer on stream pollution end 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 

Sanitary hhginoering in whose division Captain Cohen 

is employed. This attached letter offers to e degree 

an explanation of the services which were rendered the 

department by Captain Cohen during the above mentioned 

training period." 

we also quote from the letter of Mr. V. M. Ehlers, Director 

Bureau of Sanitary %ngineering, addressed to Mr. P. A. Kerby, edministretive Assistant, 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 informed us upon his cell 

to military duty that he would be only too happy to 

keep the stream pollution work going while on duty 

putting in extra time and continuing to direct the 

stream pollution studies. 

"At the beginning of the month he esssmbled the 

equipment for the mobile stream pollution laboratory 

located at a convenient place in San Antonio end 

also instructed hh-. Berreda in his duties on cclleaticn 

of samples, records, end the like. Ee spent one day 

in Houston with Mr. W. C. Geuntt discussing with 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 ecccmpanied Mr, ?:. 

J. M. Berg, Superintendent of the City Sewage Treetment Plant of San Antonio, to Austin for e conference, 

Earlier in the month he conferred with Mr. J. 5, 

Bsrette on the program of solving the sewage problem 

of the -hvc Laredo8 (see copy of letter). 

"He checked the arrival of all laboratory equipment . He transmitted e pictorial survey of the mobile 

stream pollution laboratory. On June 4th ws referred 

to him e ccmmunioeticn from Capt. E. T, Norman steticned et Kelly Field requesting assistance in the rehebilitaticn of several of the Army sewage plants in Sen 

Antonio. On June 6th we requested that he acnfer with 

hh-. Terre11 Bartlett, consulting engineer of San 

Antonio, with reference to the Nixon water supply end 

on which he gave us a reporb. On June 5th he transmitted photographs end flcr diagrams to accompany en 

article on textile mill wastes.' 

Section 12 of Article XVI of the Constitution of Texas prCVidsS8 

"No member 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 Constitution is qualified by recent 

amendments to Sections 33 end 40 of Article XVI, adopted November 8, 

1932. These sections reed: 
- - 

Honorable George R. Cm, pegs 3 

“Sec. 33. The Accounting Officers of this State 

shell neither draw nor pay a warrant upon the Treasury 

in favor of any person, for salary or compensation es 

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 National Guard 

Reserve, the Officers Reserve Corps of the United States, 

nor to enlisted men of the National Guard, the X:eticnel 

Guard Resezv'e, and the Organized Reserves of the lJnited 

States, nor to retired officers of the United States 

Amy. Navy, and Marina Corps, and retired warrant officers 

and retired enlisted man of the United States Army, 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 

Reserrre Corps of the IJnited States end enlisted men of 

the National Guard, the National Guard Reserve, end the 

Orgenized Resellres of the United States, end retired 

officers of the United States Army, Nevy, and Marine 

Corps, end retired werrent officers, end retired 

enlisted men of the United States Army, Navy, and Marine 

Corps, unless otherwise specially provided herein. 

Provided, that nothing in this Constitution shell be 

construed to prohibit an officer or enlisted men of the 

National Guard, and the National Guard Reserve, or an 

officer in the Officers Reserve VW-pa of the United 

States, or en enlisted men in the Organized Reserves 

of the United States; or retired officers of the United 

States Army, Navy, and Marine Corps, end retired warrant 

officers, end retired enlisted men of the IJnited States 

Army, Nevy, and Marine Corps, from holding in conjunction 

with such office any other office or position of honor, 

'trust or profit, under this State or ths United States, or 

from voting at any Election; General-, Special or Primary, 

in this State when otherwise qualified." 

We quote from cur Opinion No. O-2426, as follows: 

"It is clear that under Sections 33 end 40 of Article 

XVI of the Constitution of Texas, end the departmantel 

payroll affidavit interpreted in the light of these 

acnstituticnal provisions, en officer in the Officers 
Honorable George W. Cm, page 4 o-2471 

Reserve Corps of the United States may hold in oonjunction with that offiae any other position of honor, trust 

or profit in the State of Texas. and may receive salary 

or compensation for the same. 

"You are accordingly advised that employees of the 

Board of Insurance Commissioners who are Reserve Officers 

in the United States Army may continue receiving their 

salary from the State of Texas lrhile 011 active duty during 

their vacation, and under the circumstances described you 

may make the payroll affidavit required by the Comptroller." 

n 

. . . . . 

"You are advised that this Seotion of the Departmental 

,Approprietion Bill must be strictly complied with and 

State employees are limited to Twelve days' vacation, 

exclusive of Sundays and legal holidays, without deduction 

in salary." 

In this connection ws call your attention to that porti.on of 

Section 2 of the Departmental Appropriation Bill, Senate Bill 427, pacts 

1939, 46th Legislature, dealing with vacation allowance for State 

employees, which provides as followsr 

"Vacation Allowance. 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, suoh vacation period to be mutually agreed upon by 

the head of each department with 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 for whom a 

salary is hereby appropriated, shall receive compensation 

while on vacation unless he or she has been an employee of 

the department for not-less than six oalendar months 

preceding the vaaation period." 

We are enclosing herewith a oopy of our Opinion Iio, O-2426 for 

your convenienoe. 

We call your attention to that portion of the Departmental Pay - 

roll Affidavit required by the Comptroller of 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 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 the State Constitution.' 
Honorable George W. Cox, page 5 O-2471 

Seotion B of the rider to the Departmental Appropriation Bill, 

under the head of salary and other provisions, p0 147, Senate Bill &lo. 

427, Acts 46th Leg., 1939, reads in pert es follows: 

"No salary for which en appropriation is made herein 

shell be paid to any person unless suah person actually 

discharges assigned duties, hvery month 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 performed the duties for whioh 

they wers being paid. The Comptroller shell not issue 

warrants for the payment of salaries listed on said peyroll unless this affidavit is filed with him, Eeoh department head shall number aonsecutively the salaried 

positions in his department for which an appropriation is 

made herein (either out 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 filed with the Comptroller, who 

shell, when issuing his warrant to any employee in payment of salary due said employee. number the warrant with 

the seme number that is assigned to the position filled 

by said employee. Every department head shell notify 

the Comptroller in writing of any changes in personnel 

in his department. This provision shell not apply to 

seasonal help, end shall not prevent persons drawing 

their salary warrants during authorized vacation periods," 

Employees are required to perform the duties and render the 

services as required by the heeds of the various departments and tihen 

the head of such department makes the affidavit es above mentioned, 

stating that the employee has performed the duties assigned to him then 

such mployee would be entitled to his compensation as such. It is true 

that employees are limited to twelve days vacation exclusiva of Sundays 

and legal holidays without deduotion in salaryj however, this is where 

the employee performs no duty or renders no services end is errtitled to 

his aompensation notwithstanding that he has performed no duty or 

rendered no serviae. 

Trusting that the foregoing fully answers your inquiry, we are 

Yours very truly 

ATTORNXY GISNhRAL OF TEXAS 

AW:L1#:wc 

APPROVED JLKY 11, 1940 s/Grover Sellers 

By s/!Ardell Williams 

Ardell Yiilliams 

FIRST ASSISTANT ATTORNEY GENERAL ~Assistant 

This Opinion Considered and Approved In Limited Conference