## 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 memberof the Legislature was employed as a memberof the i’aoulty.. lie rorved as a 

### faculty memberdurLng the two-year term for which he was elated to the Lsgis’latur:ei but. only dur

### tn 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. YotiWibh 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 theHo&able C. H. Cavncss. Page 2 (V-689)

mamatime **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 thanone 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 gov**ernmental** function: he is invested with some portion of the lovereiputy. 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 

### contractor 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. 118Tax. 237, 14S.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 

### nucbuffleo during the entire **two-year term**  **for** which he was elected, evea though the Legia

### letire mey be ia memdoa

### for only~aportion 

### 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 tiresk

### ka at aIprafemer, theopinion 

### reads:
1 For similar rulings by theAttorney General. sea opinioas.N6s. 

### V-308, o-6578, and O-6458, ’ Report and C)pinionof 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.

. . executes no bond, and is subject to discharge at any time. “We thinkIt 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 notbeing 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 40from 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 theweight of authority in other states. **The** annotation in 75A&R. 1355concludes: ‘The **courts are**  almost unanimous in holding that the position of a teacher is that **of** employee, resting on contract.. And 14GJ.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). 32Wis. 124;Hartfgan v. **W. Vs.**  University (1901),49 W. Va. 14,38 S. E. 698; Talbott v. Public 

### Service Comm. (1942). 291Ky. 109, 163S.W.(td) 33: **State** v. Ford (1944). 116Moat. 190,151 P.(td) 171;55Am. Jur. 9.Honorable C. H. Cavnesr, Page 4 (V-6891,

However, even thoughtke same phrsod **Inay** legally occupy both placca~under **Section** 40, tba matter of his **compensa** 

### tion p r~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 draw nor pay l warrant on the Treamry 

### infavor of anypawn. 

### . , whoholds 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 8tmteedl*se hoi&s“apo+on d **bosmr,**

## trustor profitundo? &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).** Thelme 

### he&,boenkid 

### 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 notbe 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 l6 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

### Seedand **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 andhigh 

### l chool teacher in Lubbock (O-4962 and O-4433). ’ Dean of the College Andmember 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 

### hywarmat from the Treasury for rervices at tbe State college, mm&r &cuoll33.

What haa heretofare bea written has dealt only with M pyeaaats tothefaculty 

### member **by** warrant on tbe State Treus- 

### -9 ‘Irrlortber 8mk rrlut 

### thelegal 

### 8llr8tion ia 

### withreferencato pw Smede

byother thm St&e wmraats; i.e., 

### payment**Out**

### of loaxfads. A prrtrolp d Kutiou 33ia repeatedhere l

### o **that** itr 

## l pOeKXa wOrdlug with rafo ruce

to such dirtidctioa

muy be noted, If &I 

### l

Ths Aocauatiq 

### Offiuro af thie State‘shall mt draw **nor** pay a 

### wurrantupoa 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 re8momwkatkfmwn tmtheLegislature, it 

### lmrpro* vi&d at aacei~to eoileeted at thevarious colleges 

### may be retained 10~alXyby the roikger 11baakmof their owu ebooainp. Such

### money im rot 

### nqnired C be seat to ‘Anatinto 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,a8W&lb lwreiaftor set 06

TkoreMOmay rtrktre witkroferare 

### to howmd wken w8mnto may be drawa a the **Treuawy.** A college, 

### however, lo 

### uu~rined C cdlut. retuin. end**expend** iti local 

### fmmds.Thus Section 1of 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, csfesHoaorable 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 theeducational 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 imthe Treasury; Le.. notbe 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~bylaw.

. . .. Similar provIsions aro carried in the Act ~appropriatIng funds for the colleges. See Acts 50thLeg. (1947), Ch. 339at 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 50thLeg. (1947), Ch. 346. 

### p. 685.**Honoralto** 

### C. li. Cavnera. **Page** 

### 7 (V-649)

An l xaminaM oa

of other &atutes furthor ahowe **that** tke Legislature did **not** contemplate that local institutional **re** ceipte should be deposited in the State Treasury. **It** is provided **tht** the 

### StaWTreasurer 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 oftheTreasury. Local funds, ia contrast, may **be depoaibd**  **Ir a**  **local** bask. Article 4371**provides** thatthe Treaa**wet** shall eou8toreign l ud pay all warrarits.drawa on tho Treaa**wy,** axd i&t xo money shall be pdd out of the Treasury except **Orr nrrukta**  **d tlw**  **Comptroller.** Article 4374designates the State **Comptroller** aa ck official who l hall.‘draw 

### warrank on the TrearWY** Local fuada may be spent by the colleges witbout the lsristnae 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 2654dprovides **that** the governing **hoarda** ef the local institutions shall keop account of **their** receipt& .Articlos 4382 and 4390 requiro the Troasuror to keep

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 1942undir a former 

### Attwxey Ckaerd, 

### whero the qaostioa was raised an to tbe **payment** ef a 

### teacher at a &ate **Junior** College whore such teacher limultauoaely 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 16of our Constitution would not there apply. It ia our opinion that Section 33of Article 16of our State Constitution is not applicable to this situattonbecause 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 thefunds of MIOschool di5kiCt which employee him. , . .* The same result wee reached **whom** a Uaiversity of **Texas** pzofoesor also taughtin 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)** 

### pertainsonlytotheautbority of the accounting officers of the Stateto draw or pay a warrant upon the Treasury, and has nothing wbatevor to do with tbe authority of a city as a school district 

### topay 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, 

### wheretho 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 notbe permitted ta have a warrant issued to him 

### for compensation as Repraeeatative, thoughho would 

### be allowed to draw bie pay for the position held under tHegiver Author1ty.e (O-6578) We therefore hold thatthe person here involved may be paid from local ,fundeof 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 

### himfrom the Treasury for faculty duties were therefore wrongful and tho Stateis entitled to 

### recover such money.

Since he was notbeing paid as a Legislator during the timo 

### hewas 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 notihvolved.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