EATTOWNEY GENERAL. 

OFTEXAS 

PRICE DANIEL 

ATTORNEY GENERAI. 

September 22, 1948 

Hon. C.H. Cavness 

state Auditor 

Austin, Texas 

Dear Mr. Cevness : 

Opiaion No. ,V-689 

Re: Legislator teaching at State 

supported ‘s~hoole effect of 

Sections ‘33 and 40 of Article 

XVI of ,the Texas Constitution. 

You atete that your audit of a State college reveals 

that a member of the Legislature was employed as a member of 

the i’aoulty.. lie rorved as a faculty member durLng the two-year 

term for which he was elated to the Lsgis’latur:ei but. only durtn its ~~remess. He was not so employed by the College ‘during 

Legislative sessions. &ring pert of such employtner.t, he was 

paid at the College out .of the State Treasury by warrant. At c’;e 

time of your lette:?, he was not being so paid, .bu,t was being paid 

aut of local funds or receipts of the College. Yoti Wibh to know 

‘(1)whether elth,er or both such payments were legal; and (2) If 

they were illegal, vhat stepe should be taken. 

Ycur question is or;e arising out of one person’s holding two places of employment under the State slmultatreously; 

i.e., legislator and faculty member of a State-supgort.ed coZ:Lega. 

Section 40 

reeds : 

‘%o persol 

same time, more 

Irent.. . . . . . 

f, 

Section 33 

oi Article XVI of the Texas Constitution 

shell hold or exercise,. at the 

than on’10 civil office of esolziof the same A:rticle provides: 

“The eccolictiF& officers of till3 State shall 

neither draw nor pay a warrant upon the Trsasury 

in favor of any pePc8o?:i, for salary or compsndetfon 

as agerAt, officer or appoint,ea, vho holds at the 
Ho&able C. H. Cavncss. Page 2 (V-689) 

mama time any other office or position of honor. 

trust or profit under this State or the United 

Skks , . : 

Section 40 above quoted has reference only k “of- 

‘ficem~ ef the Skk. It staks that, “No psraon shall bold. , . 

more than one civil dffice , . .* There is a well rtcognloed diatiuction botwee~person who holds an “office* and a person who 

is au employee. Brlifly skted, an officer exercises aome governmental function: he is invested with some portion of the l overeiputy. He is generally required to take aa oath, and a bond ia 

frequently required. MS duties are generally fixed by law. Au 

l employee,” on the ether hand, hao such duties as are fixed by 

contract or ayigwd te him by an officer, be is Seaorally l ebjeet 

to discharge at the will of t&e officer. See Loard v. Coma, 137 

S.W.(Zd) 880, writ refuaed$ Knox v. gobnsonT?;iig.%CJEJ)T98, 

writ refusedr Meecham on rubric-WCb. 1; and +kruey 

Oemural’e Opinions V-303, V-308, V-325, and V-462. 

A Legislator unquertlonably bold@ a ctvil office of 

emolument. Mr. Jumttco Greenwood of the Tcxam Supreme Court 

in Terre11 2 King. 118 Tax. 237, 14 S.W.(td) 786, wrote: 

Vha office of rcpwmenktlw or 8enmkr 

4s 9 offiT of J~ouor, trust and profit under thts 

Iltpti’ . . . 

The La,gimlakr holda nucb uffleo during the entire 

two-year term for which he was elected, evea though the Legialetire mey be ia memdoa for only~a portion 6f such period. 

A teacher or~profesoor of a cdlege, however, 1. nbt 

a gtak ‘0fficer.s He Is an employee. In an Attorney General’s 

op&Aoa by C. M. Cur&on, lakr. Chief JustIce of our Supreme 

Gear& a Lieutenant Governor desired to accept a position on the 

fa&ty of The University of Texas.2 Wfth reference to tire skka at a Iprafemer, the opinion reads: 

1 For similar rulings by the Attorney General. sea opinioas.N6s. 

V-308, o-6578, and O-6458, 

’ Report and C)pinion of the Attorney General, 1912-14, page 873. 
Honorable C. H. Cavness, Page 3 (V-689) 

l . . . a professor . , . secures his appointment from the Board of Regents, with whom he 

contracts. . . . (He) take8 no oath. . . exec utes 

no bond, and is subject to discharge at any time. 

“We think It clear . . . that he could only 

be classed as an employee . . . and not aa an ofricer,-3 

The prohibition of Section 40, above, is addressed to 

the simultaneous holding of two ‘offices”. It has been many times 

con&rued not to prohibit the simultaneous boldfng of an office and 

on employment under the Government. Thus it has been held ia 

former opinions that, as a matter of pure eligibility, a Legislator 

could also carve as a printer for the Federal Government (O-3542)1 

aa an employee of the Federal Civil Service (o-5317); as a trustee 

of a school district, the latter not being an office of emolument 

(O-6269); as an executive officer for the Board of Vocational Education (0-645g)r as an employee of a River Authority (O-6578); and 

as executive secretary to a Board of Repeats (V-308). Similarly, 

Section 40 does not prohibit the holding of two positions as an employee. Thus it has been held that a professor may also serve ns 

city official (o-371); on the Merit Couucil of T.U.C.C. (O-2601)1 ‘as 

a public school teacher (o-4902); on the Tire Ration Board (O-4458)1 

and as a member of a State Seed and Plant Board (04562). 

Therefore, since the pernon in question occupies but 

one “office,” he is not prohibited by Section 40 from also being 

employed by a State-supported college. And. conversely, he may 

nerve as Legislator while being so employed. 

3 This is in accord with the weight of authority in other states. 

The annotation in 75 A&R. 1355 concludes: ‘The courts are 

almost unanimous in holding that the position of a teacher is 

that of employee, resting on contract.. And 14 GJ.S. 1356 

states: “*. . ordinarily a professor is not an officer, but OCcupies merely a contractual position as an employee.” See 

also Butler v. Bd. of Regents, U. of Wisconsin (1873). 32 Wis. 

124; Hartfgan v. W. Vs. University (1901), 49 W. Va. 14, 38 S. 

E. 698; Talbott v. Public Service Comm. (1942). 291 Ky. 109, 

163 S.W.(td) 33: State v. Ford (1944). 116 Moat. 190, 151 P.(td) 

171; 55 Am. Jur. 9. 
Honorable C. H. Cavnesr, Page 4 (V-6891, 

However, even though tke same phrsod Inay legally 

occupy both placca~ under Section 40, tba matter of his compensatio p r n ~ents M l ddttional question. Section 33 of Article XVI, 

&owe rdirred to, ipplioe not ealy to officer~m but to emphyeee. 

11 provldear 

Vho AcCounting Officers of this Mate ahall 

noMar dr a w nor p a y l warrant on the Treamry 

in favor of any pawn. . , who holds at the same 

time any *er offico *r poeitiou of honor, trust 

or profit &or mtc or tke Udkd Statam . , .” 

Xt by boon ruiod my thee tbt l fwalty mwnbor 

M 8 8tmte edl*se hoi&s “a po+on d bosmr, trust or profit undo? 

&lo KtMo.e h &a oplnioa by Cue* obqvo reforrod to, it was 

bdd that if the Lhtoaaxt Owomor Mayor accepted tie position 

of profemor d jouraallrm.at Tlta Univermity of Texar, he could 

k wd for mdtber job. Ufmilarly, a profwror of the Univerrity 

ooubd mot bo paid from W Tnuory for Leglrhtiw duthr while 

tuobtng in tha Auetia Publia khouxo (oplldolr V-325). The l me 

he& ,boen kid with refaroace to the dual eploymeat of faculty 

ahoers d TOXM A. I M#, Toxu Too&i , and the Dental Colhge , the Medical College , and TOW 4. k 18 

Bimilarly, under We provision, it has been ruled that, 

while a Legislator could be otheiwlao leplslly employed, he could 

not be paid by warrant on tke Treasury while occupying a porltioa 

ae Executive 8ecretary to a Board of Regenta (V-308)4 or while 

l ervlq l 6 Executive Officer for tke &ate Board of Vocational 

’ Where much faculty mmnbera also rerred on the Merit Council 

d the T.U.Q.G. (0-g681); aa a member of ,State Seed and Plant 

Board (O-4562)1 M h member d Cotton llerearch Committee 

~~4~~~ or a8 a mmmher of Stab Pink Woolworm Committee 

- . 

’ College faculty member and high l chool teacher in Lubbock 

(O-4962 and O-4433). 

’ Dean of the College And member of State Board of Health (O-5281), 

7 Professor and Consultant of a State Venereal Disease Clinic. 

(O-5525). 

’ Professor and trustee of a school district. (O-2991). 
Honorable C. H. Cavnesm,, Puge 5 (V-689) 

Education (0-6455); or while holding a position with the Federal 

Civil Service (0-53It)r or the Psderal Typhus Control (0-7813)s 

or aa a U. 9. Government printer (O-3542). 

The Legidator, therefore, was not entitled to be paid 

hy warmat from the Treasury for rervices at tbe State college, 

mm&r &cuoll33. 

What haa heretofare bea written has dealt only with 

M pyeaaats to the faculty member by warrant on tbe State Treus- 

-9 ‘Irrlortber 8mk rrlut the legal 8llr8tion ia with referenca to 

pw Smede by other thm St&e wmraats; i.e., payment Out of 

loaxfads. 

A prrtrolp d Kutiou 33 ia repeated here l o that itr 

l p OeKwOXa r dlwug ith r a fo rtuo scue c dih r tidmuc tiy b oe na o ted, 

If &I 

l Ths Aocauatiq Offiuro af thie State ‘shall 

mt draw nor pay a wurrant upoa the Tre8sury.. .- 

The puMbiUa Lo directed 8t payment8 out of the State 

hasay oo warrate hued nnd paid by tha State*s Accounting 

OClleer& For re8momwkat kfmwn tm the Legislature, it lmr pro* 

vi&d at aacei~to eoileeted at the various colleges may be retained 

10~alXy by the roikger 11 baakm of their owu ebooainp. Such money 

im rot nqnired C be seat to ‘Anatin to the State Treasury. The statatea wltb rhrau ti the deposit of money in the Treasury and its 

ritkdrrti tkerdrom have not kern made applicable to such locally 

rotdood fmuis, a8 W&l b lwreiaftor set 06 

Tkore MO may rtrktre witk roferare to how md 

wken w8mnto may be drawa a the Treuawy. A college, however, 

lo uu~rined C cdlut. retuin. end expend iti local fmmds. Thus 

Section 1 of Article t654d provides that the governing boards of the 

v8rious ~AIoo~~: 

*. . . aaap ret&b control respectively of the 

to-8 aw of mosey collected ut each of eaid 

mmr8liaaYWGiad la carrying out the functions 

of an eduuaUaaaI l~titutlon~ ouch a@ fuudm collected 

frem 6tudont fee@ of all kinds; charges for use of 

rooma and dormitories: receipts from mealm, csfes 
Hoaorable C. H. Cavness. Page 6 (V-689) 

iad cafetartis; fees on deposit refundable to students under certain conditions; receipts from 

school athletic activittos; income from studont 

publications or otbat atudent activities; receipts 

from sale of publication products and misccllaaeoas rupplles aud equipmonb students’ voluatary doposits of money with eaid schools for safe 

koepingl all other foos and local institutional income of a strictly local nature arising out of hid 

by virtue of the educational activities. or reaeirch 

or demonstration carried oa by each and all of 

said neveral achoola. 

-Sec. 2. Tbo governing boards of the raspeetive lastitutions . ; . are authoriaed to select 

depoaibry basks as places of deposit of all funda 

of the ldud and character named in Section One 6. .v 

But the same Article further provides what money sbnll 

ba deposited im the Treasury; Le.. not be retained loeallyt 

Vbe provisions of this Act shali not apply 

to any inCOrn derived from the Permanent Fund 

of the University of Texas, but all income derived 

from the Permanent Fund of the University of Texan 

and all incomo from the two million acres of land 

sot apart to the Uaivorsity of Texas by the Constitutlon and by the Act of 1883, &all be deposited in 

the State Treasury and paid out oa Comptroller’s 

warrants aa is kow prcivided~by law. . . . . 

Similar provIsions aro carried in the Act ~appropriatIng funds for the colleges. See Acts 50th Leg. (1947), Ch. 339 at 

page 669.a 

8 See also the Appropriations Act for Public Junior Colleges which 

operato largely out of local funds. It provides: ‘There shall be 

appropriated biennia’lly from money in the Stato Treasury. , . aa 

amount sufficient to supplement local funds in the proper support. 

maintenance. operation and improvement of tho Public Junior 

Colleges of Texas . . .- Acts 50th Leg. (1947), Ch. 346. p. 685. 
Honoralto C. li. Cavnera. Page 7 (V-649) 

An l x a mina M oof a other &atutes furthor ahowe that 

tke Legislature did not contemplate that local institutional receipte should be deposited in the State Treasury. It is provided 

tht the StaW Treasurer shall racoive ‘all money paid into the 

Treasury and give a receipt therefor. Art. 4370. By Article 

4374, all meaey recrivrd by the Troasuror shall be kept,in tbe 

deo and vaulb of the Treasury. Local funds, ia contrast, may 

be depoaibd Ir a local bask. Article 4371 provides that the Treaawet shall eou8toreign l ud pay all warrarits.drawa on tho Treaawy, axd i&t xo money shall be pdd out of the Treasury except 

Orr nrrukta d tlw Comptroller. Article 4374 designates the State 

Comptroller aa ck official who l hall.‘draw warrank on the TrearWY** Local fuada may be spent by the colleges witbout the l sristnae of the Comptroller a? Traaouror. Article 4372 provides that 

the Treaawer l Ul keep aecounta of receipti and expenditures of 

UIO mosy of tke Treasury. aut Article 2654d provides that the 

governing hoarda ef the local institutions shall keop account of 

their receipt& .Articlos 4382 and 4390 requiro the Troasuror to 

k eep l ww~aat eegibtsr and c8ah balance book. .Local fund oxpeu4ltwea wa wt listed thsroin. ~ 

It ir tkrafore apparent that tho Legislature hr anado 

a diotisction betweea fuadr which aro to be placed in the Treasury 

and expended only on warrants on the Treasury, and local fuadr. 

Saction 40 proMMta only psym’enta out of tho Traaowy wwarranb 

‘The Accountihg Officer8 of this State shall 

withar dr8w nor pay a warrant on the Troaswy.. ,* 

A comporrble l ituatioa arose in 1942 undir a former 

Attwxey Ckaerd, whero the qaostioa was raised an to tbe payment 

ef a teacher at a &ate Junior College whore such teacher l imultauoaely held the dice of @uaty School Trwtee. That opiaioa 

(O-4&6) cordudeo: 

“You state in pur latter that Mr. Bointnott, 

one of the County School Trustees. is a teacher at 

Lamar Junior College. His position as a toacher 

ia clearly not an office, and Section 40 of Article 

16 of our Constitution would not there apply. It ia 

our opinion that Section 33 of Article 16 of our 

State Constitution is not applicable to this situatton because no accounting officer of this State 
. 

Hoaorablo C. Xi. Csvnaee, Page B (V-689) 

draws or pays a warrant on tho State Treasury 

in favor of Mr. Bointnott as he receive8 his teaching SbWy from the funds of MIO school di5kiCt 

which employee him. , . .* 

The same result wee reached whom a Uaiversity of 

Texas pzofoesor also taught in AusMa High School. He could not 

be paid by warrant OA the Treasury for his Uaiwreif/ work. Byt 

with rcforenco to his high school pay, opinion V-325 reads: 

“This section (33) pertains only to the autbority of the accounting officers of the State to 

draw or pay a warrant upon the Treasury, and 

has nothing wbatevor to do with tbe authority of 

a city as a school district to pay the salaries of 

itm kacbers.” 

The same result was roached 1~ O~~A~OA O-5087, 

where a County Treasurer aleo l ervod as principal of a Coralcane 

high l chool. 

Similarly, where tho question wan as to tho compearatioa of a &gislator, should he accept simultaneous emptoymeat 

witha Texas Rivor Authority (whose salaries were not paid from 

the Troaewy). it was held that: 

+ 

. . . he would not be permitted ta have a 

warrant issued to him for compensation as Repraeeatative, though ho would be allowed to draw 

bie pay for the position held under tHe giver Author1ty.e (O-6578) 

We therefore hold that the person here involved may 

be paid from local ,funde of the College for his faculty services 

during the Legislative recess. But he may not be paid for eervices at the College by warrant on the State Treasury while holding 

ths office of Legislator, even during its recess. The payments to 

him from the Treasury for faculty duties were therefore wrongful and tho State is entitled to recover such money. 

Since he was not being paid as a Legislator during the 

timo he was omployed at the College; and since ho was not employed at the College during tha Legislative 505~510~~ funds paid to 

him as a Legislator are not ihvolved. 
Honorable C. H. Cavness, Page 9 (V-689) 

Before deciding what legal action should bo tsken TV 

recover such money, it would seem that the Legislator should bo 

given the opportunity to voluntarily repay such sum. If he rbrld 

refuse. and you so’inform us, we will proceed with that portion 

.of your opinion request. 

One person may hold the office of Legislator 

and an employmont as a faculty member of a State 

college. However. he may not be paid by warrant 

on the Treasury for aitber place while holding Wth. 

But, if the Legisl&ter teacbos during the LogirlaUv8 recess. he may ,bs paid by the College, out of 

‘local institutio~l receipts of such institution, the 

Constitutional inhibition relating only to paymenta 

by the State% l ccountfng officer* by warrant on the 

Treasury. Coiut. of Tcxao, Ark XVI! SM. 33 and 

40. 

Youis very truly, 

ATTORNEYGENERALOFTEXAS 

#wz.~’ ,, d oe R. Craanhill 

Executive Assistant