OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Pear air. ~.!i?happardl 
Iion. G%o,o IL Sheppard - Paga E 

or pay any parson who Is ap offloer or oomSL~;L~; member of any political party organi- 

. The uonmlaslon my delegate to any 

au& person 80 aapolnted euoh parer and 

authority a8 it damns reasonable and proper 

i0r*ths efre0tive adminlsPetion of this 

Aot, and map In it6 disowtion, bond any 

person htmdng monsyo or eignlng ~heoks 

heroandar," 

In purmanoe of thi8 authority, the CO~Wstion 

has #et-up (L body of en@lopaer krwm as ,the Hurit Jystem 

Oounoll, designbd to meat the ap roval of tha F&oral 

SaOWity AgcUlOy for loinimun St J 

This ttetup ia a8 fol.lOwar 

aFd4 of a merit mystem. 

"SMTIC2p I - XSRIT - aolmcIL 

'?)aragFaph I. A Martt; System Counoil, to be govsra~! 

by the rules harsln prov%dsd, shall be appointed 

by the majority ocsnaont of the Co111mjs#io~s, 

The COMOil 6hrll bi3 OCWQXWJ~~ Or thrO0 (8) SWbar6 who shall be publla-apirfted oitlseens M 

knfmledge of publio ad8rraOtion 0r ~0wieiw 

intereet' ti lta 

organi%atlon during the year next prsosdlag his 

mppolntment, nor ahall he hold ewh ofticP# &ix'- 

ins his tag. Bo member or the COwlOil ShlLll be 

othf~dmb 8i~~loysd 85 8~ ofri0itd or 

the GOXQ.MJ:O~ during hl8 term a8 a mam ~loyee er of Oi 

the Corm011 anb,~haLl not have bean an imployoo 

or the C-lserlon within One gear next prao*aing 

his appointmnt aa a rmnbr or the Oounoll~ 

Par., a. It shall be the lluty of the Counoll: 

1, TO dvi5a On t&Option or general poliaier ror the 

d.miniatration 0r merit exuain&ions,,a~d to act 

as appsal board for applioants wh0 have been ra- 
..,. 

3 

Hon. Ceo. B. Sheppard - Page 3 

joated for oxadnation, as provided in titlole 

XIII. 

2. To hear appeals of employees &lsahargod or demoted. 

3. To advise in the formulation of prooedures ln personnel adminlstratlon to insure conformity with 

rules and pollales. 

4. To 3dvlse~nith fad racommend.ror seleotlon and 3). 

polntment, by the C~nmlssl~n, a Merit System Supervioor; to advise with the Merit System Supervisor 

ln formulation of prooedures ror the conduot ol' 

merit examinations; and to lnspeot and review tbs 

aotfvities or the Supervisor to.lnsure oonformlty 

with this Rule and the poliolee, ala8slfioatlOn 

end objeotlve etandards of the ~ommlsslon~ 

5. To review the olassltlaotlon and eompansatlon plans 

and to advise on their adoptions and subsequent revisions, 

0. To promote publlo unberstandlng of the purpoaea, 

poliales and prsotloes of the merit system. As a 

meens thereto, the Sounoll shall make a report to 

the Commission atleast semi-annually on the operation of the marit system, inoluding the oondact of 

examinationa, the establishment of' re&vters, aertlfloatlon~from registers, promotions, salary advanoements;dismissale, demotions, transrers, 

separationa, end the maintenance of elaeelfloatlon 

and aompensation plans. A oopy of this rsport 

shall be open to publla inspeatlon. 

7. To recommend to the Commission amendments or &a~&58 

in ths msrlt system, whlah, in their opinion, are 

deemed neoessary and advisable and whloh, in their 

opinion, will promote a more errlclent and oaonomloal operrition of tha merit plan. 

Par. 3. Xembers or the counoll. shall serve for a term or 

one (1) year, beginning with the date 011 whleh these 

rules are apgrovod, or until suaemsora have been appointed. A member appointed to fl.lZ a vacanay oaourring prior to the expiration of the term shall be appointed for the remainder of suoh t8rm.~ 
4 

ITon. 040. B. Sheppard - page 4 

Par. 4. The Council shall eleot a Chairman f’rom 

its membership. It shell also deelgnete 

the Merit System Supervisor or other employee as its Rsoordlng Seoretary, whose 

duty It shall be to keep a reoord of the 

prooaedlngs of meetings. Eleetings OS the 

Counofl ahall be held aa often a8 neceseary 

and preotleeble upon oall or the Chairman. 

The Commission shall have the right to be 

represented at all meetings, but suoh 

repreeentation shall be without voting 

power, The Counoll shall adopt prooedures 

for the oonduot or Its activities. 

Par. 6. Member6 of the Counoil shell reoelve no 

eelarg or wage, exaept that they laay be oompensated on a per diem basis ot not to exoeed Ten Dollars ($10.00) per day ror eeoh 

day that they are in attendanoe at meetings 

of the Counoil and enga 

anue or their dutlee. 

ed in the perrormhl ey may also be reimbursed for ex$ense,s lnourred while engaged 

In the performanoe ot their duties ineluding 

traveling expenses, wlthln the limits or the 

biennial appropriation aat .* 

Pour lnqulry raiess at once the fundamental question or whether or not the oooupanoy of the position of 

faoulty member to the .A. a I. College, and or membership 

in the writ System Counoil ie in anywise in violation 0r 

Seotione 5;1 or 40 or &rtials xvi of the constitution, or 

otherwise illegal beoawe or inoompatibfl.lty or the two 

positions. 

Seation 40 or iZrtiole XVI or tha coastltution 

forbids any person to hold or exerolse, at the same time, 

more than one =olvil orfloe oi emolumentn, with certain 

exoeptions not pertinent to this inquiry. 

The position or a raoulty member or the A. k M. 

College Is not a civil offloe. Suoh a member Is an employee rather than a air11 offloer, although, of eourae 

his poeition Is one or emolument, The poslti.on of taouity 

member Is not oreated ,by law but by oontraot between the 

employing Board and the IndirldualJ and, furthezmors, the 
Eon. Oeo. EL Sheppard - page 5 

duties of such faoulty member are not created by law, 

but, on the contrary, by oontraoti again, &oh facdty 

memb6r does not exercise any of the runotions of savereignty whatsoever, and this ia an Indispensable funotion to a civil orrioer. 

W8 have reoognlsod fheoe a6 ts%tr in our ap$nlon 

Elo. O-490, in which we cited with approval the ceae of 

State 0r r8ontana vs. Hawkins, aeoretary 0r State; 88'1 pao. 

411, 33 A. I,. SZ. 685, and annotation thereto upon the subjeot of "DtitinOtiOn between ofrioe and ~loymentr~ 

&1so, our Opinion No. O-ES&RI, and .34 Tex. Jlur. p. St3. 

800, 

Seotlon 33 of &tlole XpI or the Constitution 

1.s mora restrlctivs. l% provldee a8 rollorrsr 

*The a&UtUIg olfloers ot thie State 

shall neither draw nor pay a ~raat upon 

the Txeesury In rater or any pertboa, for 

salary or aomporuation aa agent, orrioer or 

appoints0 who hold6 at the oam tti any 

other offloe or 

h! 

oeftlon or honor, trust or 

prorlt, under t K State or the United a,tatea*, 

vririt g$ln enmaer~t8d eroeption.6 not porti- 

. 

Thls seotlan extends the disqualifioation of a penon beyond the holding or exeroielng or ~a wolvi.1 offioe or emolumont,* 80 se to inoluds the holding of any other 

wofrlce or poeition of honor, trust or prolit*, under thl8 

state op: the united Stataa,.axcept a8 p-or&bed ia the 

Constitution. 

The question recrurn‘ than, whether or not the 

poeltion of a faoulty member in the A. 6 11. College i# 

an *offioe or position or honor, truet or proriW, under 

this State. Dndoubtedly, a.proreanoPship i.n the A. t Y. 

college is a *position or honor, trust and proriP. 8uoh 

ponition, we think, further, is held Wander this State*. 

wue lt Is that the raoulty aaabor is not employed dlreatly by the State, but, on the other hand, is cynployed by 

the Board having control ar the institutioni but euah 

Board is itself a botly of publlo ef+flOerS, Oonstituting 

a Stat8 governmental agenoy ror the very pl.lrpo89 of oonduoting the arrairs 0r tb, College, and in every just 

sense, thereford, the faoulty member6 employed by tke 

Board, and wh+, or ooursc), am paid Wectly bg the 
Hon. OM. B. Sheppard - Pa@ b 

‘. -‘-” - f 

state, are hold& positions oi honor, trust and profit 

under the State, not lmmdlatrly but mediately. me 

State oan orily act through ~enololr. 

So that ln the opinion of thiu department, 

Soetlon 33, Artlois XVI, o? the Constitution dor pxoblbit a member or the faoulty or A. Q M. oouege rrtm moelving: ralary or 00mpenaation whatsoever out of the 

State Treasury for mrrlou rendered a8 a member of the 

Merit System Counail or your board. 

oompelled, 

we think this uonclu8ufoa f6 supported ir not 

by the o~inlon 0r first wal8tant Atkrnoy 

cwneral Cureton (Le al opiaio*, Attorney Oenerdl, 19l% 

1914, pb 873) whem L he hold am follmmt 

"we, thorerore, byl to adtie you that 

Eonorable W$U H. May68 while aotlag~aa Limutenant Governor of thir Wats, oould not la&lly hold the p~rribion 6r~ PJslomont of a profuaor or journeliam in the unirenity or pma0.* 

Moreover, oar 065olorion rind0 isupport and authiilty in the opinion of ID. Taylor, Aaslstant Attorney 

cmmral, a aonierenob opinion Qtlr* General IPonoy’a 

admlnlatlcatlon (opieions, &ok 30, p. 394) wheroln it wa@ 

held thatr 

%hould one or the alorb in a departmsnt be appointed a mcmbor of a board of maaagem 0r an elmmo~ynary la8tltutlon, then tti 

ofriosrr of tM6 rtate would be 

$?i%te 3 by the ab~re $eotlon Sr~m drawin,$ 

or pay* any warrant upon the IPrramry ror 

the mlary or rush a e1rrk.n 

It will be obsamed that in the two oa8u &et 

elted the queetlon propounded and uwwered by the Attorney 

Oensml~s Department was with rempoet to the right8 Of an 

employee or a departnmt to reoelte compensation while at 

t& :a$ tine holding and enJoyif@ a publlo orfloe under 

The preotee qu9stlon whether or sot the pub110 

oiflwr'holdlnS at the mama tima a pcmltlon of honor and 

trust under the state oould reeelv~ ompenaatlon from the 
*. --.-~ / 

State Trea5ury wa5 not presented or deolded. That Is, 

however, the precise questlon pmsenteU In this mm. 

That such officer is denied the right of salary or oompensatlon we think la clear beyond doubt under the express 

terms of Section 33. The two oases above olted axe also 

authority ior the proposition that the employee ln suoh a 

ease ls llkawlse denied oolapensation from the state. This 

oonoluslon would appear to be corollary to the main oonelusion that the two positions are incompatible under the 

Constitution and that the person oooupying euoh dual posltfons would thererore not be entitled to oompensatlon from 

the State with respect to either position, whether of offloor, agent, appointee, or eglgloyee solely. 

However hat my be we are of the o InIon that 

in say event Seotlon 33 of A&le XVI does pro 1 lblt the 

payment of compensation out of the @ate Treasury to an 

offloor, such aa the one under consideration here, who at 

%he same time likewise holds or attempts to hold a position 

oi honor or trust uader the state, 

yours very truly 

ATTORaEll CJEWBAL