April 22, 1953 

Bon. Robert s . Calvert Opinion IW. S-32 

Comptroller of Public Accounts 

Capitol station Rer Applicability of the 

Austin, Texas -noa-communist oath 

required by H.B. 21, 

53x4 Legi+?Ja~e, to 

services by doctors, 

1avyers, e~agineers, 

architects, skilled 

services, labor, 

statutory vitness 

fees in criminal 

cases, payment of expert vltnesses, payment for assistance 

in lav enforcement, 

coo~rative projects 

administered by other 

agencies, constitutional salaries of 

State Officers and 

per diem of members 

Dear Sir: of the Legislature. 

We have your request for an opinion on the applicability of the follovlng provision of Bouse Bill Humher 21, Acts of the 53rd Legislature, 1953: 

"plo funds of the State of Texas shall 

be paid to any person as salary or as other 

compenaatlon for personal services unless 

and until such person has filed vith the 

payroll clerk, or other person by vhom such 

salary or coxpensatioE Is certified for payment, an oath or afflmation'stating: . . ." 

You asked specifically: 

"1. professional ,services, such was 

doctors, lavyers, engineers, architects, 

etc.? 
I. 

Hon. Robert S. Calvert, page 2 (S- 32) 

"2. Skilled services to build, to 

repair, or to service contracts which are 

for labor only? 

"3. Statutory servfce8, witness fees 

in criminal cases, expert vitnesses, payment of services for law enforcement, undercovers-work, etc.? 

"4. Cooperative projects; varrants 

drawn to reimburse Federal and State agenties, or Its subdivisions or compact commlssions for salaries or personal services? 

"5. Constitution of sal,aries such as 

executive officers of the State government 

and per diem from members of the State Legislature?R 

follows: 

The oath required by H. B. 21 Is In part as 

"1. That the affiant is not, and has 

never been, a member of the,_Communist Party. 

. . ; and 

"2. That the afflant is not, and during the preceding five year period, has not 

been, a membee of any organization, assoclation, movement, group or combination which 

the Attorney General of the United States, 

acting pursuant to Executive Order No. 9835, 

March 21, 1947, 12 Federal Register 1935, 

has designated as totalitarian, fascist, 

communist or subversive, . . . and 

"3. That the affiant is not, and, during the preceding five year period, has not 

been, a member of any 'Communist Political 

Organixation' or 'Communist Front Organlxation' registered under the Federal Internal 

Securlt Act of 1950 (50 U.S.C.A., sec. 781, 

etseq.. 3 ...n 

In answer to your first and second questions, 

it is our opinion that the above provisions do apply 

to salary and compensation paid to doctors, lawyers, engineers and arhhitects, and to skilled craftsmen and 

laborers, If their services are rendered in the capacity 
Hon. Robert S. Calvert, page 3 (S-32) 

of employees; and zot as fndependent-cuntraators. 

, There Is no exclusfve rule~,by ,vhlch lndependent contractors and employees~may be dlfferentlated. Qenerallg; .hoveveer; the relations are ~dlstinguiahe&by-the qxtent'of.'the control which the . 

+st~lossr~ex.ercises~~over the,emolosee in the manner 

in-vhich he performs his vork.- C&uth v. Valley 

Ready-nix Concrete Co., 221 i3.W.a 564 (Tex. Civ. 

App. 1949, error ref.r 

"An independent contractor is any 

person vho, in the pursuit of an lndependent business, undertakes to do a 

specific piece of vork for other persons, 

using his own mfans and methods, without 

submittlna himself to their control In 

respect to all Its details." Shannon v. 

Western Indemnity, 257 S.W. 522,324 (Comm. 

App. 1924). 

But each case mnst be based on its ovn facts. 

In ansver to your third question, It is our 

opinion that the above provlslon~ do not apply to 

statutory witness fees in crlmainal cases, nor to compensation paid by the State to expert vitnesses since 

these fees are clearly not for personal services, but 

are to reimburse the vltnesses for their expenses. 

It IS our opinion that the above provisions 

do apply to payment for special and undercover services 

in lav enforcement If the services are performed in the 

capacity of an employee. 

Your fourth question 1s too broad and general 

to be answered specifically. However, we vi11 be glad 

to ansver opinion requests based on any Individual agency 

or fact situation. 

In ansver to your fifth question, it is our 

opinion that the above provisions do not apply to constitutionally fixed salarles of State Officers, nor to 

the constitutionally fixed per diem of members of the 

State Legislature, since such constitutional provisions 

are self executing and exclusive. 

We are In no vay passing upon the constitutlonality of the above Act. 
-. . . 

Hon. Robert S. Calvert, page 4 (S-32) 

Then "nOn-B@T?erd3W" oath, required 

b,y H.B; 21, Acts, of,the 53ra L+gislature, 

1953, appliesto State ,funds paid for 

services by~doctors; lawyers, engineers, 

architects, skilledz craftsmen and laborers, 

and for.speclal and undercover Service0 in 

law enforcement; if such~servlces are rendered ia the capacity of an employee and 

not asan lndependent~contrsctor. 

The 'non-subversive" oath doe6 not 

apply to statutory vitaes8 fees In crlmlnal cases, nor to compensation paid by 

the State to expert witnesse~s, uor to the 

constitutionally fixed salaries of State 

Officers, nor the constitutionally fixed 

pxr3Wxro~~~St* Mgtslators. 

Yours very truly, 

APPROVBD: 

JOHN BEN SREPPERD 

Attorney General