THE ATTORNEY GENERAL OF TEXAS **C:n*wFORD** **G. RL4HTIiw**  AUSTX~,TEXAR 78711 Ax-rORNYEYGENERA& September 8, 1964

HonorableByron Tunnel1 Speaker Opinion No. C-307 House of Representatives Austin, Texas

Dear Mr. Tunnell: Re! Compensation of a member of the House of Representatives who has a contractualagreement with the High Plains UndergroundWater Conser~a~ tion District No. 1. ; Your request for an opinion reads as follows: "I request thatyou advise me whether or n~otI can legally authorize expenditures of monies to and for a member of the House of Representativesunder the facts set **out.** 'The Honorable H. G. Wells of Tulia, Texas, Representative,District 89, consisting of Briscoe, Hale, Swisher and Ployd Coventies, entered **into a**  contractwith the High Plains Underground Water ConservationDistrict No. 1, to render legal services to the District. A copy of the contract is attached hereto for your informationandcconslderation. "At that time, September 30, 1963, in an abundance of caution, Representative. Wells requested that he be taken off the monthly Hou~se of RepresentativeMember's payroll and since that timehe has not received any compensation as a member of the House of Representatives. "I request thatyou advise me: "1. Does the relationshipbetween Representative Wells and the High Plains Underground Water Conservation District No. 1, as evidenced by the contract precludehim from receiving the Constitutional salaryas a member of the House of Representatives? "2
. If the answer to questionno. 1 is in the negative, can I now authorize Representative -1464-Hon. Byron Tunnell,, page 2 (C-307)

Wells to be paid for themonths he has not received such salary.and-ifso, can he be paid in a lump sum?" We have carefully examined the contractualagreement entered intoby and between the High Plains UndergroundWater Conservation District No. 1 and RepresentativeWells. Under thisagreement, Representative Wellsbecame an independentcontractorwith -theConservationDistrict and cannot be considered an employee of theDistrict nor an officer of the District. Therefore, Section 40 of Article XVI of the Constitution of Texas prohibitinga person from holding or exercisingat the same timemore than one ci~viloffice of emolument is not applicable to RepresentativeWells, under the facts submitted. Likewise, Section 33 of Article XVI of the Constitution of Texas prohibiting theAccounting Officers of this State from paying a warrant in favor of any person for salary or compensationas agent, officer, or appointee,who holds at the same time any other office or position of honor, trust or profit, under this State or theUnited States, ,isnot applicable. While Attorney General's Opinion C-221 (1964) .heldthat a member of the Legislature~isnot eligible to receivehis salary as a member of the Legislature while he is employedby a governmental agency of the State, suchholding is not applicable to the facts submitted in your request, for the reason that the agreement between the ConservationDistrict and RepresentativeWells creates the relationship of independent contractor rather than constituting a contract of employment.

In view of the foregoing,you are advised in answer to question no. 1 that the relationshipbetween RepresentativeWells and the High Flains UndergroundWater Conservation DistrictNo. 1 does not preclude RepresentativeWells from receiving the constitutional salary as a member of the House of Representatives.

In answer to your second question,you are advised that since his constitutional salary for the months he has not received is now due and payable, such salarymay be paid in a lump sum. '_r SUMMARY An agreementbetween an agency of the State and a member of the Legislature which creates the relationship of an independent contractor, rather than constitutinga contract of employment, does not violate theprovisions of Sections 33 or &O of Article XVI of the Constitution of Texas and, therefore does not preclude the payment of -1465-Hon. Byron Tunn~ell, page 3 (C-307)

the constitutional salary to such member of the Legislature.

**YOL:.TS**

**very** truly, WAGGONER CARR Attorney General

‘de+- Assistant JR:ms APPROVED: OPINION COMMITTEE W. V. Geppert,~

Cha~irman Robert Smith Brady Coleman Roy Johnson .?~ APPROVE3 FOR THE ATTORNEY GENERAL By: Roger Tyler

- 1466-