Hon. Bill T. Swanson,Chairman Opinion No. M- 1194

Oil, Gas, and Mining Committee House of Representatives Re: Whether office holders, State Capitol Building such as judges~, may Austin, Texas 78711 simultaneouslyhold office on the boards of regents of State Dear Representative Swanson: institutions.

Your recent letter requesting the opinion of this office concerning the referencedmatter states as follows.:

"As chairmanof the Oil and Gas Committee, I respectfullyrequest an opinion from your office in regard to office holders, such as judges, also holding office on the Board of Regents of State institutions. I personally feel that this is in conflictwith the State constitution,however, your office **may** clarify **same. ”**  Section 33 of Article XVI of the Constitutionof Texas, as amended in 1967,provides, in pertinentpart, as follows: "TheAccounting Officers of this State shall neither draw nor pay a warrant upon the Treasury in favor'ofany~ person for salary or compensation as agent, officer or appointee, who holds at the same time any other office or position of honor, trust, or profit, under this State, except as prescribed in this Constitution.
. . It is further provided, until September 1, 1969, and thereafter only if

-5828-Won. Bill T. Swanson,page 2, (M-1194)

authorizedby the Legislatureby general law under such restrictions and limitationsas the Legislaturemay prescribe, **that a**  non-elective State officer or employee may hold other nonelective offices or positions of honor, trust, or profit under this State or the United States, if the other offices or positions are of benefit to the State of Texas or **are** requiredby State or federal law, and there is no conflictwith the original office or position forwhich he receives salary or compensation.
. . .. (emphasis added.) Pursuant to the authorizationcontained in **Section** 33, as amended, the Legislature enactedArticle 6252-9a, Vernon's Civil Statutes,which, in substance,allows a nonelective State officer to hold another non-electiveState or federal officewhen such dual officeholding is of benefit to the State of Texas and is not incompatiblewith the original officeheld.

Section 40 of Article XVI of **the** Constitutionof Texasprovides, inpertinent part, that:

"NOperson shall hold or exercise at the same time, **more** than one Civil Office of emolument. . . .(I For purposes of your opinion request,we are assuming that the "judges"to whom you refer are elected officials and that they are paid their salariesby the State of Texas. We further assume that the members of the boards of regents to whom you refer receive no compensation from the State for their services as regents.

In accordancewith the hypothetical set of **facts** set forth in the preceding paragraph, Section 40, supra, is not applicable to your opinion request, inasmuchas a nonsalaried regent does not hold a "civiloffice of emolument"

**-5829-**Hon. Bill T. Swanson;page?, .(M-119.4) :::

within the meaning of that Section. See Whithead v. Julian, 476 S.W.2d 844 (Tex.Sup.1972);Attorney General% Opinions NOS. M-409 (1969)and and M-042 (1971).

Further, neither **the** proviso to the 1967 amendment to Section 33, supra,nor Article 6252-9a is applicableto your request,as both of those provisions apply.onlyto one holding two non-electivepositions;we reiterate thatwe are assuming that the "judges"to whom you refer hold elective office. Thus, the only constitutionalprovision that remains apposite to your request is the first sentence of Section 33, quoted supra. In accordancewith that provision,you are advised'that, in the event the elected, State-salaried judges to whom you refer are appointed to and accept a non-salaried position as members of the boards of regents of State institutions, they would not be entitled to receive any State compensation for the judicialpositions they now hold. Bovett v. Calvert, 467 S.W.2d 205 (Tex.Civ.App.1971, error ref. n.r.e.) SUMMARY ------- (1) Pursuant to Section 40 of Article XVI of the Constitutionof Texas, the position of a non-salariedmember of the board of regents of a State institution is not a "civil office of emolument"within the meaning of that Section. (2) Pursuant to Section 33 of Article XVI of the Constitutionof Texas, an elected, Statesalaried judgemay also ho.ldthe non-salaried office of regent of a State-supported institution, but if so, he may receive no compensation from the State for his position as judge.

C. MARTIN ney General of Texas **-5830-**Hon. Bill T. Swanson,page 4, W-1194)

Preparedby Austin C. Bray, Jr. AssistantAttorney General APPROVED: OPINION COMMITTEE **Kerns** Taylor, Chairman W. E. Allen, Co-Chairman Roger Tyler Jack Sparks James Broadhurst Houghton Brownlee SAMUELD.MCDANIEL Staff LegalAssistant
ALFREDWALKER ExecutiveAssistant NOLAWHITE FirstAssistant .

-5831-