November 23, 1965 

Honorable W. W. Heath, 

Chairman 

Board of Regents. 

The University of Texas 

Austin, Texas 

Dear Mr. Heath: ' 

Opinion No. C-550 

Re: Whether service on a %tate 

or Federal board or commission by a' member of the 

faculty or administration 

of The University of Texas 

Is in violation of the common 

law rule of "lncompatIbIllty" 

or in vl6latlon of either 

Section 12, 33 or 40 of 

Article 16 of the Texas Constitution, where the Board 

~of Regents of the University, 

acting pursuant to certain 

powers delegated to it by the 

Legislature, hae.mqulred the 

member to serve on the board 

or comgibslon as an addltlotil 

duty of his +nplojwnt by the 

University and has found as a 

fact that the member's service 

on the board or commission 1s 

compatible wlth his employme& 

by the University and Is a 

benefit and advantage to the 

University and to the State 

of Texas. 

You have requested our opinion on the above captioned 

matter. 

We have very recently had occasion to re-examine ihe 

.appllcable Texas Constitutional provisions and case authorities 

generally appllcable.to the facttil situation presented by your 

request in Attorney General's O&nlon No. C-527. dated October 

15, 1965, a copy of which we attach-hereto. 

You advise that the boards or commlssltins upon which the 

service Is to be performed "vary widely a&to characteristics," 

that some Involve the taking of oaths, some having definite 

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Honorable W. W. Heath, Page 2 Opinion No. C-550 

tenure, etc., but none possess and perform sovereign power8 of 

government. We do not regard any one or even several of such 

characteristics or conditions of an office or position of honor, 

trust, or profit as being determinatlve..~F!ut generally such 

service as you have described would not appear to be prohibited 

under the facts presented. It Is our conclusion that,, as 

shown by the authorities set out In our Opinion No. C-527, 

members of the faculty or administration of the Unlverslty of 

Texas may perform the service on the board or canmlas~on, 

provided that.neither the board, commIssIon nor the members 

thereof exercise sovereign powers of either the Federal or 

State government. 

The Texas statutes (Articles 2584, et seq., V,A.C.S.) 

provide In pertinent part that: 

"The government of the University of 

Texas shall be vested In a Board of Regents 

composed of nine persons. . . . (Art. 2584) 

They shall . . . appoint a president; . . , 

appoint the professors; . . . fix their ., 

respective salaries; and they shall enact 

such by-laws, rules and regulations as may 

be necessary for the successful management 

and government of the University. . . . 

(Art. 2585) The Regents shall have,power 

to remove any profei3sor, .or, tutor . . . 

connected with the lnstl 6J uIon when, in 

their judgment, the interest of.the 

University shall require it. ('Art. 2586)." 

Prom the foregoing statutory provisions It Is clear that 

under the law, the Board of Regents has full power and 

authority to employ and discharge members of the faculty and' 

administration and to prescribe the duties which each of them 

shall be required to perform. 

It Is also clear that since the Board of Regents exercises 

delegated powers, Its rules are of the same force as would be a 

like enactment of the Legislature, and Its official interpretation placed upon the rule so enacted becomes a part -of the 

1.iTeic.SuD. 19%): -To th= 

. 
There f a*~, 'de have :r s.ltt~allon I:. wnlch ti:e enip?oyee of 

a state agency 1~ directed bj* zne agency $s governing board,. 

acting pursumc tc tertaln powers deiegatcd to 1; by the 

Legislature, to serve 01: such a bcsrd or co8mnlsslon. cxerclslng 

no sovereign powers of gwernwent, as sn addItIona duty of his 

position of emplojmcnt. 

Under such case authorltiec as now exist In Texas, the. 

Constitutional prohlbltlons against dual office holding (Art. 

16, Sets. 12 and 40) were held not applicable where under the 

law additional dutles were merel~y Imposed on an existing 

For example, In Flrot.Eaptlst Church v. City of Ft. Worth, 

$E: the &au .creating the Fort Worth Independent School Dlar c provided that the assessment and.collectIon of the taxes '; of the district. would be made by the assessor and.collector of 

the taxes of the Clty.of Fort Worth. It was contended that 

this violated the constitutional prohlbltlon against one person 

holding more than one civil office of emolument. in holding 

that there was no violation of tile consrltutlonr-1 provision, 

the Court said: 
Honorable W: W. Heath, Page 4 Opltilon No. C-550 

"The Imposition of additional duties,' 

says Corpus Jurls, vol. 46 934 II 29 

'upon an existing office, io*be pei-fonuei 

under a different title, does not constitute 

the creation of a new office.' The same 

authority further says: 'An office to which 

the dutlks of another are annexed remains 

technically a single office; It Is not an 

office under Its own name and title and 

another under the name of the one whose 

duties are annexed to It.' See, also, 

Allen v. Fldelltv Co.. 269 Ill. 234, 109 

N.E. 1035; Hat&id v: &go Count~~Court, 

80 W.Va. 165, 92 S.E. 245; State'v. 

Powell,.109 Ohio St. 383, 143 N.E. 401." 

(Emphasis supplied) 

This office has followed the same rationale as that : 

adopted by the cotits'ln the cited cases In at~least~ three' 

Opinions Nos. S-94 

Since the primary purpose of Section 33 of Art. 16 of the 

Texas Constitution was to prevent dual office or position 

holding, we can ljerceive of no reason why the same lnterpre-, 

tatlon gfven to Art. lb,, Sets. 12 and 40 should not be .',~~ 

analcigous.~to aiid equally apIjllcable to Section 33 of Art. 16. 

Thls office, In Attorney General Opinion No. 0-2607 (1940), 

said that the object sought td be accomplished by Section 33 

was as follows: 

I, 

. . . that no person should receive 

compensation from the State for services to 

be rendered It, when during 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 

connectlon.wlth the latter posltla, so 

that he may not render full.value In the 

first capacity for the compensation which 

the State has agreed to 

this Section (33 P 

ay. . '. . So construed, seeks to avoid 

even the possibility that the State may 

not receive a full quid pro quo for 

expenditures by way of compensation for 

services to be rendered in one capacity, 

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Honorable W: W. Heath, Page 5 Opinion No. C-550 

by reason of the person serving In that 

capacity placing hlmself In such a position 

that he may be tempted to neglect the 

duties of the one place for the responslbi.lltles of the other.' 

If, therefore, the service on the board or commission Is 

made an addlt(ona1 duty, and Is not such as would tend to cause 

the University employee to neglect his other duties and reaponslblllties to the University, and the Board of Regents has 

entered an administrative finding that such service on the 

board or commlsslon 'Is a benefit and advantage to the Unlverslty and to the State of Texas, and further that such position 

does not exercise any sovereign functions of government' then 

our above stated conclusion with regard to the non-appllcablllty 

of Section 33 in this Instance Is entirely consistent and compatible with the object sought to be accomplished by that section 

of the Constltutlon. 

Since two offices or posltlons of honor, trust, or profit 

are not being simultaneously held, and the member's service on 

the board or commlsslon ls related and.compatlble with his 

employment, the common iaw rule prohibiting dual office holding 

on the ground of lncompatlblllty la not violated. 47 Tex.Jur.2d 

42, Public Officers, Sec. 28. 

Texas cases Pollow the general rule.as to added duties and 

which rule 1s succinctly stated In Ashmore v. Grbater Greenville 

Sewer Dlst., 211 S.C.~n. 44 S.E.26 tQ5, 173 A.L.R. ,397: 

"The rule here enforced wlth'respect 

to double or dual officeholding In vlo- 

'latlon ofi the constitution is not applicable 

to those officers upon whcdn other duties _ 

relating to their respective offices are 

placed by law: A common example la ex 

offlclo membership upon a board or colmalSSlon 

of the unlt of government which the officer 

serves In his official capacity, and the 

functions of the board or commission are 

In accord, see Eluitt v. State, 56 Tex.Crlm. 525, 121 S.W. 

168 (1909); Zasb:.andCounty v. REG'.b, 288 S.W. 518 (Tex.Clv.App. 

1926, error ref-). See the excellent discussion in lkCu11ers 

y. Board of Com'rs. of Wake County, (N.C. 1912), 73 3.E. 61b, 
Honorable W. W. Heath, Page 6 Opinion No. C-550 

which cites the Texas case of Powell v. Wilson, 16 Texi 59 

~%%nal duties. 

Judges who sit on juvenile boards perform related 

Jones v. Alexander. 59 S.W.2d 1083 (Corn. 

Jordan v. Crudglnuton, 149 Tex. 237. 231 S.W.2d 

However, In order that we be not misunderstood as to the 

effect of this Opinion, it appears necessary further to point 

out that we do not Interpret the above cited cases Involving 

the "added duty" theory as permitting the simultaneous holding of two positions of honor, trust, or profit under the state 

or federal government. 

Our conclusion 1s that a position with the state or federal 

: government which exercises no sovereign functions of government 

and Is found to be ComDatible by the Board of ReRents Is not a 

position of honor, tr&t or prokt 

Sec. ,33 of the Texas Constitution. 

SUMMARY 

Service by- a member 

or administration of the - 

as set out lri-Article 16, 

of the faculty 

Unlvetislty of 

Texas on a state or feder'al board or 

commission, not,exercislng sovereign 

powers of either the federal or stati 

government violates neither the common 

law rule of incompatlblllty nor Sections 

12, 33 or 43 of Section 16 of the Constitution of Texas. Where the University 

Board. of Regents- acting pursuant to 

certain powers delegated to It by the 

Legislature, has promulgated rules and 

regulations requiring such service, and 

correctly finds that the service is 

compatible with the employment and a 

benefit to the University of Texas and 

.to the state, and that such position does not 

exercise any sovereign functions of government, 

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Honorable W. W. Heath, Page 7 Opinion No. c-550 

the member may so serve without 

violating such sections of the Constitutlon and may be validly paid out 

of the State Treasury his salary or 

compensation as an employee of the. 

University. 

Yours very truly, 

W&3GONER CARR 

Attorney General. of Texas 

KBT/'dl:fb 

APPROVED: 

OPINION COMMITTEE 

. W. V. Geppert, Chairman 

. H. Grady Chandler 

.Robert'Flowera 

Roger l$ler 

Arthur Sandlin 

Marietta .Payne. 

".. ‘APPROVED FOR TRJ3 A'iTORNEy GENERAL 

BY: T. B. Wright 

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