April 22, 1953



### Bon.Roberts. Calvert Opinion IW. S-32 Comptroller of PublicAccounts Capitol station Rer Applicabilityof the Austin, Texas -noa-communist oath requiredby H.B. 21, 53x4 Legi+?Ja~e, to servicesby doctors, 1avyers,e~agineers, architects, skilled services, labor, statutoryvitness fees in criminal cases, payment of expert vltnesses, payment for assistance in lav enforcement, coo~rative projects administeredby 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 follovlngprovision 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 servicesunless and until such personhas filedvith the payroll clerk, or other personby vhom such salary or coxpensatioE Is certified for payment, an oath or afflmation'stating:

. . ."
You asked specifically: "1. professional ,services,suchwas doctors, lavyers, engineers, architects, etc.?I.

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

### 32)

"2. Skilled services to build, to repair, or to service contractswhich are for labor only? 

### "3. Statutory servfce8,witness fees in criminal cases, expert vitnesses,payment of services for law enforcement,undercovers-work,

etc.? 

### "4. Cooperativeprojects;varrants drawn to reimburse Federal and State agenties, or Its subdivisionsor compact commlssions for salaries or personal services? 

### "5. Constitutionof sal,aries such as executive officers of the State government and per diem from members of the State Legislature?R

follows: The oath requiredby H. B. 21 Is In part as

"1. That the affiant is not, and has neverbeen, 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 combinationwhich 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 'CommunistPolitical Organixation' or 'CommunistFront Organlxation' registered under the Federal Internal Securlt Act of 

### 1950 (50U.S.C.A., sec. 

### 781, etseq.. ...n

3 In answer to your first and second questions, it is our opinion that the above provisionsdo apply to salary and compensationpaid to doctors, lawyers, engineers and arhhitects, and to skilled craftsmen and laborers, If their services are rendered in the capacityHon. Robert S. Calvert, page 

### 3 (S-32)

of employees; andzot as fndependent-cuntraators.

, There **Is** no exclusfve rule~,by,vhlchlndependent contractors and employees~maybe dlfferentlated. Qenerallg; .hoveveer; the relations are~dlstinguiahe&by-the qxtent'of.'the control which the

. +st~lossr~ex.ercises~~over the,emolosee in themanner in-vhichhe performshis 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 lndependentbusiness, undertakes to do a specific piece of vork for other persons, using his own **mfans** and methods, without submittlnahimself 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 requestsbased on any Individualagency or fact situation.

In ansver to your fifth question, it is our opinion that the above provisionsdo not apply to constitutionally fixed salarles of State Officers, nor to the constitutionally fixed per diem of members of the State Legislature, since such constitutionalprovisions are self executing and exclusive.

We are In no vay passingupon 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 

### 53raL+gislature, 1953, appliesto State ,fundspaid for servicesby~doctors; lawyers, engineers, architects, skilledz craftsmen and laborers, and for.speclalandundercover Service0 in law enforcement; if such~servlcesare rendered ia the capacity of an employee and not asan lndependent~contrsctor. The 'non-subversive"oath doe6 not apply to statutoryvitaes8 fees In crlmlnal cases, nor to compensationpaidby the State to expert witnesse~s, uor to the constitutionally fixed salaries of State Officers, nor the constitutionallyfixed pxr3Wxro~~~St* Mgtslators.
Yours very truly,

APPROVBD: JOHNBEN SREPPERD Attorney General