November 23, 1965

HonorableW. 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 ~ofRegents 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 compatiblewlth 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 .appllcableTexas Constitutionalprovisions and case authorities generally appllcable.to the facttil situationpresented 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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tenure,etc., but none possess and perform sovereignpower8 of government. We do not regard any one or even several of such characteristics

or conditionsof an office or position of honor, trust, or profit as being determinatlve..~F!ut generally such serviceas you have describedwould not appear to be prohibited under the facts presented. It Is our conclusionthat,, as shown by the authoritiesset out In our OpinionNo. C-527, members of the faculty or administration of the Unlversltyof Texasmay perform the service on the board or canmlas~on, provided that.neitherthe board, commIssIonnor the members thereof exercise sovereignpowers of either the Federal or State government. The Texas statutes (Articles2584, et seq., V,A.C.S.) provide In pertinentpart that:

"The governmentof 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 regulationsas may be necessary for the successfulmanagement and governmentof the University.

. . . (Art. 2585) The Regents shall have,power to remove any profei3sor, .or, tutor
. . . connectedwith the lnstl 6J u Ion 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 Regentshas full power and authorityto employ and dischargemembers 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 delegatedpowers, Its rules are of the same force as would be a like enactment of the Legislature,and Its official interpretationplaced upon the rule so enacted becomes a part -of the

1.iTeic.SuD.

19%): -To th= .There fa*~, 'dehave :rs.ltt~allon I:. wnlch ti:e

enip?oyee

of a state agency 1~ directedbj*zne agency$s governing board,. acting pursumc tc tertalnpowers deiegatcd to 1; by the Legislature, to serve 01: such a bcsrd or co8mnlsslon. cxerclslng no sovereignpowers of gwernwent, as sn addItIona duty of his position of emplojmcnt. Under such case authorltiecas now exist In Texas, the. Constitutional

prohlbltlonsagainst dual office holding (Art. 16, Sets. 12 and 40) were held not applicablewhere under the law additionaldutles were merel~y Imposed on an existing

For example, In Flrot.EaptlstChurch v. City of Ft. Worth, $E: the &au .creating the Fort Worth Independent School Dlar c provided that the assessment and.collectIonof the taxes '; of the district. would be made by the assessor and.collectorof the taxes of the Clty.of Fort Worth. It was contended that this violated the constitutionalprohlbltlonagainst 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:HonorableW: W. Heath, Page 4 Opltilon No. C-550

"The Impositionof additionalduties,' says Corpus Jurls, vol. 46 934 II 29 'uponan existing office, io*bepei-fonuei under a differenttitle, does not constitute the creationof a new office.' The same authorityfurther 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,.109Ohio St. 383, 143 N.E. 401." (Emphasissupplied) This officehas followed the same rationaleas that : adoptedby the cotits'lnthe cited cases In at~least~ three' OpinionsNos. S-94

Since the primarypurpose 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-, tatlongfven to Art. lb,, Sets. 12 and 40 shouldnot be .',~~ analcigous.~to

aiid equally apIjllcable to Section 33 of Art. 16. Thls office, In Attorney General OpinionNo. 0-2607 (1940), said that the object sought td be accomplished by Section 33 was as follows:

I,

. . . that no person should receive compensationfrom the State for services to be rendered It, when during the time such compensationIs to be earned such person, by accepting and holding anotherposition under the State or the United States,has obligatedhimself to render services In connectlon.wlth

the latter posltla, so that he may not render full.valueIn the first capacity for the compensation which the State has agreed to

this Section (33

Pay. . '.
. So construed, seeks to avoid even the possibility that the State may not receive a full quid pro quo for expendituresby way of compensationfor services to be rendered in one capacity,

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by reason of the person serving In that capacityplacing 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 commissionIs made an addlt(ona1duty, 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 administrativefinding 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 exerciseany sovereign functions of government' then our above stated conclusionwith regard to the non-appllcablllty of Section 33 in this Instance Is entirely consistentand compatible with the object sought to be accomplishedby 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 prohibitingdual officeholding on the ground of lncompatlbllltyla 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 succinctlystated 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 officeholdingIn vlo- 'latlon ofithe constitutionis not applicable to those officers upon whcdn other duties

_ relating to their respective offices are placed by law: A common example la ex offlclomembership upon a board or colmalSSlon of the unlt of governmentwhich the officer serves In his official capacity, and the functions of the board or commissionare

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,HonorableW. W. Heath, Page 6 OpinionNo. C-550

which cites the Texas case of Powell v. Wilson, 16 Texi 59 ~%%nal duties.

Judgeswho sit on juvenileboardsperform related

Jones v. Alexander.59 S.W.2d 1083 (Corn. Jordanv. 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 necessaryfurther to point out that we do not Interpretthe above cited cases Involving the "addedduty" theory as permittingthe simultaneousholding of two positions of honor, trust, or profit under the state or federalgovernment. Our conclusion1s that a positionwith the state or federal : governmentwhich exercisesno sovereign functionsof government and Is found to be ComDatibleby the Board of ReRents Is not a positionof honor, tr&t or prokt Sec. ,33of the Texas Constitution.

SUMMARY Service by-

a member or administrationof the - as set out lri-Article 16,

of the faculty Unlvetislty

of Texas on a state or feder'al board or commission,not,exercislngsovereign powers of either the federal or stati governmentviolates 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 certainpowers delegated to It by the Legislature,has promulgatedrules and regulationsrequiring such service,and correctly finds that the service is compatiblewith the employmentand a benefit to the University of Texas and .tothe state, and that such positiondoes not exercise any sovereign functionsof government,

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the member may so serve without violating such sections of the Constitutlonand may be validlypaid out of the State Treasuryhis salary or compensationas 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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