. 

THE .~TTOKBTEY GESERAZ. 

OF %%XAS 

Honorable John Lawhon Opinion No. M-297 

County Attorney 

Denton County Re: May a county attorney serve 

Denton, Texas as a college professor at a 

state university under the 

provisions of Sections 33 

and 40 of Article XVI, Texas 

.~ Constitution, and related 

Dear Mr. Lawhon: statutes. 

You have recently requested an opinion from this 

office regarding the above stated matter, we quote from your 

letter as follows: 

"QUESTION 

"Can the County Attorney of Denton County 

serve as professor for one class at a state 

university? 

"BRIEF ON THE LAW 

"A new case, Tllley v. Rogers, 405 S.W.2d 

220, 224 (Tex.CIv.App. 1966, wr.ref.,n.r.e.), 

directly answers this question. There is no 

later case In 

fl 

olnt. 

Art. 1.6, Sec. 

The Tilley case construes 

0 of the Texas Constitution, 

which article restricts a person from serving 

In more than one civil office of emolument. 

"The office of County Attorney Is such a 

civil office; 'however, a professorship Is not 

an office. A teacher or college professor is 

not an office within the meaning of the constltutlonal provlslons of Art. lb, S 

Constitution of the State of Texa? 

. 40 of the 

H e Is an 

employee and the prohibition of the constitu- 

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Honorable John Lawhon, page 2 (M-297) 

tional provision of Art. 16, Sec. 40 is in 

s%-F*’ T l1 

R 405 s 

224 (~ex’“cI:::Ap~pef~~6~“~~“XS.,n. 

“CONCLUSION 

“The answer to this question Is that such 

County Attorney can legally serve a8 profeaeor 

for a class at a state university.” 

Section 40 of Article XVI, Vernon’s Texas Constltution, la quoted in part a8 follows: 

“No person shall hold or exercise, at the 

same time, more than one civil office of emolument. . . .‘I (ephasisam 

We have reviewed the case of Tllley v. 

S.W.2d 220 (Tex.CIv.App. 1966, err.reS.n.r.e.), 

your analysis of that case. You are also referred to Attorney 

General Opinion V-689 (1948) which makes It clear that it has long 

been the position of the Attorney Qeneral that a college professor does not hold “a civil office of emolument.” The court 

in the Tllley case, suora, was concerned on1 with the holding of more than one !‘oSS Ice” undersection -3 0 of Article XVI. 

However, your question also necessitates an analysis 

of Section 33 of Article XVI, Vernon’s Texas Constitution, 

which Is quoted, In part, as Scillowa: 

“The accounting officers of this State 

shall neither draw nor pay a warrant upon the 

Treasury in favor of any person for salary or 

compensation as agent, officer or appointee, 

who holds at the same time any other office or 

position OS honor, trust, or profit under ‘this 

Statel except as prescribed in this Constltutlbn. 

. . . 

Without question, a county ‘attorney holds an “office 

.of honor, trust or profit under this State.” Article 329 

Vernon’s Civil Statutes; Attorney Ueneral Opinion No. 

- 1,,434 - 
Honorable John Lawhon, page 3 (M-297) 

Likewise, this office has held many times previously 

that a college professor of a state college holds a position 

of honor, trust, or profit under this State, In Attorney 

General Opinions Nos. C-527 (1965) and c-528 (1965), it was 

held that there was no material legal distinction between 

"office of honor or trust" or "position of honor or trust." 

However, there Is a material distinction between "office of 

profit" and "position of profit." While the former term 

means that the holder exercises sovereign governmental Sunctlons, the latter term differs in that Its duties are not 

necessarily so characterized and embraces both officers and 

employees. A teacher holds a "position" of profit. 

and Phrases 53, 55, "Position", 

33 words 

and 1968 Pocket Part, pp g-11, 

and cases there cited. See Attorney General Opinion V-689 (1948), 

and the many prior opinions cited therein, that a school teacher 

falls wlthln the prohibited term, "position of honor, trust, or 

profit." 

Therefore, a county attorney who Is also teaching 

at a state supported college would be holding two positions 

OS honor, trust or profit and thus 1s subject to the constltutlonal provisions of Section 33, Article XVI. 

Consequently, the State Comptroller would be prohibited In paying the salary or compensation of an Individual 

who Is presently a county attorney and also a professor at a 

state college or university. However, the County Attorney Is 

not prohibited from serving as a professor In the state college without compensation, and he may also draw compensation 

out of funds, the sources of which are not from the State 

Treasury reaulrlna the accountlna officers of this Stat'e to 

draw or-pa -a warFant See Attorney General Opinion Numbers 

V-689 (I&) and also-see C-547 (1965). 

The people, during 1967, saw fit to amend Section 

33 of Article XVI so as to provide that a non-elective state 

officer or employee may hold other positions of honor, trust 

or profit under this State or the United States under certain 

specified conditions, but elected officers or position holders 

are still subject to the prohibitions discussed herein. See 

Attorney General Opinion No. M-193 (1968). 

- 1435 - 
Honorable John Lawhon, page 4 (M-297) 

SUMMARY 

A college professor at a state university 

Is not a civil office of emolument under Section 

40 of Article XVI, Constitution of Texas. 

v. Rogers, 405 S.W.2d 220 (Tex.CIv.App. 19 

reS.n.r.e.) and the County Attorney may serve as a 

college professor of a state college, but without 

compensation from the State Treasury. 

The State Comptroller is prohibited by Section 

33 of Article XVI, Vernon's Texas Constitution, 

from paying the salary or compensation of a college 

professor who Is also a county attorney. 

truly yours, 

Prepared by James C. McCoy 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

Bill Corbusler 

Pat Bailey 

Arthur Sandlln 

Robert Flowers 

A. J. CARUBBI, JR. 

Executive Assistant 

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