## TIEEATTORNEYGENERAI. OF-XAS

GROVERSELLERS AUSTIN xx.TEXAS

*TroRxEY GENERAL

Hon. Stansell Bryan Criminal Distr,ict Attorney McLennan County Waco, Texas Dear Sir: Opinion NO. O-7318 Re: Whether or not it is lawful for amemberof the Texas State Legislature to work

### for the United States Public Health Service as aSupervisor of Typhus Control.
Your letter of recent date requesting an opinion from this department on the above subject matter is as follows:

"I would appreciate It if you would advise me whether or not it is lawful for amemberof the Texas State Legislature to work for the United 6tates Public Health Service as aSupervisor of Typhus Control, provided such memberof the Legislature does not drawafederal salary while the Legislature is in session." In answer to our letter requesting certain information concerning the position mentioned in your inquiry, wereceived the following from the United States Public Health Service:

"1

. Mr. SamSellers was employed off of a regular Civil Service Register bythe Federal Gov; ernment with aclassification of Engineering Aide, SP-5. "2

. His title of classification was Engineering Aide,.SP-5, whenhewas employed, and he still held that sameposition when heresigned. His duties were to work with adusting crew on our Typhus 

### Program. "3

. Hereceived asalary from the Federal Government andnot from the State Government. "4

. Yes, hetook an oath of office the same as all other Federal employees when entering onduty.-,

Hon. Stansell Bryan, page 2 O-7318

“Mr. Sellers resigned this position onJune 21 1946. ” Article 

## 16,Section 12, of our State Constitution provides as follows:

“Nomemberof Congress nor person holdlng,r exercising m office of urofit or trust under the United States, or either of them, or under any foreign power shall be eligible as amemberof the Legislature -- or hold or exercise anyTf?oe of profit or trust under this State. ”
It is generally held that the most important characteristic which distinguishes an office from aposition is that the creation andconferring of an office Involves the delegation to the individual some of the sovereign functions of government. See

## 34Texas Jurisprudence, pp. 

## 322-326; Mechemon Public Offices, 9gb-10; Kimbrough v. Barnett, 93Tex. 310, 

## 55S.W. 122; and CornmiSSIoners Court of Limestone County v. Garrett (Commlsslon of Appeals) 

## 236S.W. 970.

Wequote the following from the Limestone County case:

“‘The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of anoffice involves adelegation to the individual of someof the soverelgn functions of government, to be exercised by him for the benefit of the public; that someportion of the sovereignty of the county, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. ++*In distinguishing between an office andan employment, the fact that the powers in question are created and conferred by law is an Important criterion. For, though an employment maybe created by law, It is not necessarily so, but is often, if not usually, the creature of contract. Apublic office, on the other hand, is never conferred by contract, but finds Its source andlimitations in someact or expression of the governmental power. * * * Public officers are usually-required by law to take the oath of office, and this fact goes far in determining the character of the duty. But the taking of the oath is not an indispensable criterion, andthe office mayexist without It, for, as has been said, the oath is amere incident andconstitutes nopart of the office. * * +If aduty be acontinuing one, which Is defined by~rules prescribed by the government, andnot by contract, whLchan individual is appointed bygov-Hon. Stansell Bryan, page 3 0-7318

ernment to perform, whoenteres onthe duties pertalnlng to his statlon without any contract defining them, if those duties continue though the person be changed, it seems very difficult to dlstinguish such acharge or employement from an officer. * * *At the sametime, however, this element of continuance cannot be considered as indispensable, for, if the other elements are present, It can makenodifference whether there be one act or a series of acts to be done, whether the office expires as soon as the one act is done, or is to be held for years, or during good behavlor.' Mechemon Public Officers, gf4 4to 8. "'Public office is the right, authority, and duty created andconferred by lawbywhich, for a given period either fixed by law or enduring at the pleasure of the creating power, an Individual is vested with someportion of the sovereign functions of the government to be exercised by himfor the benefit of the public.' The correctness of this definition is nowhere questioned, so far as weknow, and it is useless to add supporting authorities.' Kimbrough v. Barnett, 93Tex. 310, 55S.W. 122. "'A manis none the less apublic officer where his authority is confined to narrow limits; for it is the duty of his office and the nature of that duty which makehiman officer, and not the extent of his authority.'" Mechemon Public Officers, El9. Wehave carefully considered the duties of the position of Federal Engineering Aide, SP-5 in the light of the foregoing authorities and it is our opinion that such position does not constitute an office of profit or trust under the United States, but constitutes aposition of profIt or trust under the United States. We'call your attention, however, to Section 33 of Article 16of our State Constitution which provides in part as follows:

'The Accounting Officers of this State shall neither draw nor pay awarrant upon the Treasury In favor of any person, for salary or compensation as agent, officer or appointee, whoholds at the sametime any other office or position of honor, trust or profit, under this State or the United States, except as prexed in this Constitution." There are certain exceptions provided in the foregoingHon. Stansell Bryan, page 4 o-7318

Section which, however, are not material to the question under conslderatlon.

.

Our Opinion No. 0-2607 in construing Section 33of Article 16, stated the following:

"It Is clear that this section does not seek to prohlblt the serving of the State by one inaivldual In more than one capacity. Theprovision addresses itself only to the matter of compensation. Thus, amanmayhold two offices, or an office and aposition of honor and trust under the State, If nocompensation attaches to either place. But If heholds an office, or is anagent or appointee, and to such place compen sation attaches, hemay not be paid for services rendered in that capacity during the period of time that heholds another position of honor or trust under the State or the United States. Fromthis general statement as to what the section does anddoes not prohibit, we gather the general policy embodied therein. This policy seems obviously to be that noperson should receive compensation from the State for services to be rendered it, whenduring the time such compensation is to be earned such person, by accepting and holding another position under the State or the United, States, has obligated himself to render services In connection with the latter positlon, so that hemaynot render full value in the first capacity for the compensation which the State has agreed to pay. Soconstrued, wefind that the Section is but one of the manyin the Constitution seeking to place every conceivable safeguard about the expenditure of State monies. Soconstrued, this Section seeks to avoid even the possibility that the State maynot receive afull quid pro quo for expenditures bywayof compensation for services to be rendered in one capacity, by reason of the person serving In that capacity placing himself in such a position that hemaybe tempted to neglect the duties of the one place for the responsibilities of the other." Wequote the following from our Opinions No. O-5317: "If the place in the Federal Civil Service is an 'Office', then, upon accepting and qualifying therefor the memberof the Legislature will automatically forfeit andvacate his office as memberof the Texas Legislature, perforce of the provisions of the Constitu-Hon. Stansell Bryan, page 5 O-7318

tion, Article 16, Sec. 12. If the place in the Federal Civil Service is not an 'office' but a 'position' of 'honor trust or profit', then, under Sec. 33, the memberif the Legislature could not be compensated as such If, over the period for which compensation as a memberof the Legislature was claimed, healso held the place in the Federal Civil Service. Since members of the Legislature are paid per diem only for the days during which the Legislature Is in session, the member of the Legislature would not prejudice his right to compensation as such if heheld the position in the Federal Civil Service only during periods in which the Legislature was not in session. Sec. 33deprives the officer, agent or appointee of the right to be compensated with respect only to the period during which heholds another office or position of honor, trust or profit."
In view of the foregoing, it is our further opinion '~ that aLegislator cannot receive any compensation for his services as Legislator while he holds the position with the Federal Governmeik referred to above. Yours very truly ATTORNEY

GENERALOFTEXAS By s/J.C. Davis, Jr. J.C. Davis, Jr.
By s/John Reeves John Reeves JR:djm:wc

APPROVED

AUG12, 1946 s/Carlos C. Ashley FIRSTASSISTANT ATTORNEY

GENERAL Approved Opinion Committee Bys/BWBChairman