DAN MORALES 

ATTORNEY GNERAL 

QBffice of tfy Plttocnep @i%weral 

&ate of IEexas 

October 11, 1991 

The Honorable Thomas R. Phillips Opinion No. DM-49 

Judicial Districts Board Re: Whether a justice of the Supreme 

P. 0. Box 12248, Capitol Station Court of Texas would violate any proviAustin, Texas 78711 sion of the Texas Constitution or a state 

statute by serving as a member of the 

Board of Directors of the State Justice 

Institute (RQ-109) 

Dear Chief Justice Phillips: 

In your capacity as chairman of the Judicial Disticts Board,1 you have asked 

whether a justice of the Supreme Court of Texas would violate the Texas 

Chstitutio~ article XVI, section 15 section 33, or section 40, or any other 

constitutional provision or statute by serving as a member of the Board of Directors 

(the “board”) of the,State Justice Institute (the “institute”). Your query requirk us 

to examine both the federal statutory scheme establishing the institute and its board, 

and the state constitutional prohibitions against dual office holding. 

Fe institute is a private, nonprofit corporation created by and organized 

pursuant to federal law. See 42 U.S.C. 9 10701 ef seq. The purpose of the institute is 

to further the development of improved judicial administration in state courts. Id 

9 10702(a). Its duties include directing a nati&al program to provide funds to state 

courts and national organizations that support or are supportkd by state courts, 

fostering‘coordination between the state and federal judiciaries and encouraging 

education for state judges and state judicial personnel. Id 9 10702(b). The 

institute’s organic statute authorizes extensive federal appropriations to fund the 

institute and its programs. Id 3 10713. While the organic statute provides that 

“[e)xcept as tithe&se specifically provided in this chapter, the institute shall not be 

considered a department, agency, or instrumentality of the Federal Government,” id 

‘See TCL Const. art. V, 0 7a 

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The Honorable Thomas R. Phillips - Page 2 (DM-49) 

Q 10704(c)(l), it also provides that the institute is subject to the federal Freedom of 

Iuformation Actr and has rulemaking authority, id 00 10702(f), 10704(e). The 

board’s responsibilities with respect to the institute include establishing policies, 

funding priorities, and rules and regulations; developing programs; appointing and 

fixing the duties of the executive director; and presenting recommendations 

regarding state judiciaries to pertinent entities of the federal government. Id. 

9 10703(k)(l) - (4). The board is also expressly required to award grants and enter 

into cooperative agreements and contracts on behalf of the institute. Id 

90 10703(k)(6), 10705(a). 

The board consists of six judges, one state court administrator, and four 

members of the public. Id 3 10703(a)(2). Board members are appointed by the 

President, by and with the advice and consent of the Senate. Id 9 10703(a)(l). The 

President is required to select the judge and administrator members from a list of 

candidates submitted by the Conference of Chief Justices. Id 9 10703(a)(3). Board 

members generally serve for three-year terms and may be reappointed for 

subsequent terms. Id 9 10703(b), (c). Each board member has one vote. Id 

8 10703(f). The board members are required to hold regular meetings on a 

quarterly basis. Id Q 10703(i). Board members serve without compensation but are 

reimbursed for their expenses. Id 5 10703(d). The organic statute also contains the 

following provision: ‘The members of the Board shah not, by reason of such 

membership, be considered officers or employees of the United States.” Id 

0 10703(e). : 

To determine whether Texas law precludes a justice of the Supreme Court of 

Texas from serving as a member of the board of the institute, we turn to the Texas 

Constitutior~, article XVJ, sections 12, 33, and 40, the constitutional provisions 

pertaining to dual office holding. 

Article XVI, section 40, provides in pertinent part that “[n]o person shall 

hold or exercise at the same time, more than one civil office of emolument.” Section 

33 provides: 

The accounting officers in this State shall neither draw nor 

25 U.S.C. D 552 

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The Honorable Thomas R. Phillips - Page 3 (DM-49) 

pay a warrant or check on funds of the State of Texas, whether 

in the treasury or otherwise, to any person for salary or 

compensation who holds at the same time more than one civil 

office of emolument, in violation of Section 40. 

An elective judgeship, a paid position, is a “civil office of emolument” under sections 

33 and 40. See Attorney. General Opinions JM-594 (1986); JM-333 (1985); M-l 194 

(1972); M-409 (1969). By contrast, a member of the board of the institute does not 

receive a salary and is entitled only to reasonable expenses,s and therefore does not 

hold a “civil office of emolument.” See Attorney General Opinions M-1194; M-842 

(1971). Thus, neither section 40 nor section 33 would prohibit a justice of the 

Supreme Court of Texas from serving as a member of the board of the institute.4 

Section 40 also explicitly exeflph various state and federal offices (including justices 

of the peace, county commissioners, notary publics, postmasters, officers of the 

National Guard, National Guard Reserve and Officers Reserve Corps, and retired 

officers and enlisted soldiers of the various United States military forces) from the 

dual office holding prohibitions of sections 12 and 33-5 Section 44 however, does 

not provide an exemption for either justices of the Supreme Court of Texas or 

members of the board of the institute, 

% 42 U&C. 0 10703(d). 

‘In November 1972, the voters amended section 33. See SJ.R. 29, Acts 1971,62d Leg., at 

4l33 (proposing constitutional amendment). Prior to that amcmimeot, s&ion 33 prohibited the 

campcnsation of * state officer Y&o holds at the same time any other OJ@C or@tion of honor, bwr 

orp@, under this State or the United States.” (Emphasis ad&d.) While section 40 precluded a state 

o&x only from holding two ‘civil O&J of emolument,’ i.e. compensated of&s, section 33 precluded 

a state officer from holding any office, includiog ao uocompcnsated office. See Attorney General 

Opinions M-11% M-g42 Thus, under the prior version of section 33, elected, shied judges who 

accepted unwmponsalcd positions were. not entitled to receive any state compensation for their judicial 

positions. Se: Attorney General Option M-1194. 

%ction 40 also provides that a nonelcctivc. state offxer may hold other nonchtive oftices 

m&r the state or the United States, “if the other offkc. is of benefit to the State of Texas or is required 

hy the State or Federal law, and there is no contlict with the original oftkc for which he receives salary 

or cornpcnsation.’ See V.T.C.S. art. 6252-98 (statutory provisions gowr&g the-dual office. holding of 

oonelcctk state officers, invalidated in part by 1972 amendment to Texas Constitution article XVI, 

sections 33 and 40); see u&o Attorney General Opinion H-5 (1973). 

p. 245 
The Honorable Thomas R. Phillips - Page 4 (DM-49) 

Article XVI, section 12, provides: 

No member of Congress, nor person holding or exercising 

any office of profit or trust, under the United States, or either of 

them, or under any foreign power, shrill be eligible as a member 

of the Legislature, or hold or exercise any office of profit or trust 

under this State. 

Section 12, except as provided by article XVI, section 40, generally precludes any 

person who holds an office of profit or trust under the State of Texas from holding 

an office of profit or trust under the United States. As noted above, the provisions 

of ,article XVI, section 40, exempting some state and federal positions from the 

general prohibition against dual office holding are inapplicable here. 

The scope of section 12 is quite extensive. The interpretive commentary to 

this constitutional provision notes that while the common-law doctrine of 

incompatiiili$ of public offkes did not inhibit dual office holding where the 

positions were not incompatible, “the provision in the Texas constitution establishes 

an absolute prohibirion against double office holding, and hence it is immaterial 

whether the offices would be considered incompatible at common law.” (Emphasis 

added.) The consequences of holding two offices are considerable. A state officer 

who accepts an office of profit or trust under the United States automatically 

abandons his state office and is no longer entitled to compensation for state office. 

See Centeno v. Inselmann, 519 S.W.2d 889,890 (Tex. Civ. App.-San Antonio 1975, 

no writ); Lowe v. State, 201 S.W. 986,987 (Tex. &im. App. 1918); Attorney General 

Opinion M-409. 

A justice of the Supreme Court of T&as clearly,holds an “office of profit or 

trust under the State of Texas-” See Lowe v. Skate, sups. Thus, a justice is precluded 

from serving as a member of the board of the institute if that position is an office of 

profit or trust under the United States. Pursuant to title 42, section 10703(d), of the, 

United States Code, members of tbe board are reimbursed for their expensks but 

selve without compensation. Thus, the position is not an office of “profit.” See 

Attorney General Opinion MW-360 (1981) (person who is entitled to reimbursement for travel expenses but whose position is uncompensated pursuant to federal 

regulations does not hold office of profit under article XVI, section 12). Therefore, 

the critical issue is whether the position is an office of trust under the United States. 

Id 

p. 246 
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Under Texas law, the determination whether a position is an office of trust 

under the United States for purposes of article XVI, section 12, involves a number 

of considerations. First, we consider the legal basis of a position and its duties, 

including its mode of appointments and statutory genesis, to determine whether it is 

“under the United States.” See Attorney General Opinion MW-360 at 2; cj KVlti v. 

Potts, 377 S.W.2d 622 (Tex. 1964) (holding that a councilman of a home rule city 

held an “office under this State” for purposes of article III, section 19, of the Texas 

Constitution because the position was created by the state constitution and 

performed duties imposed by the state). Second, we also consider whether a person 

holds “an office,” or is merely a ministerial federal employee or serves in an 

essentially advisory position. The key to this determination is whether the person is 

to be delegated “some of the sovereign functions of the United States Government.” 

Attorney General Opinion MW-360 at 2 (quoting Attorney General Opinion C-527 

(1965)). “An office” is a position that 

.possess[es] a delegation of a portion of the sovereign power of 

government - authority to exercise some portion of the sovereign power -independent of any superior human authority 

other than a statutorily prescribed general control. 

Letter Advisory No. 85 (1974) at 4 (quoting LaFher v. Commonwealth, 418 S.W.2d 

416, 417 (KY. 1967)); see UI!SO Greeti v. Stauart, 516 S.W.2d 133, 135 (Tex. 1974); 

AMne Indep School D& v. Smndlq~, 280 S.W.2d 578,583 (Tw 1955). Finally, this 

office has also considered, to a lesser extent, the stability and duration of a position, 

requiring that to constitute “an office,” a position must have some modicum of 

permanency and continuity, such as is provided by an appointment for a fixed term. 

Attorney General Opinions JM-847 (1988) at 5; O-4313 (1942). See gene&y 

Attorney General Opinion M-409 (setting forth constitutional criteria for “office”). 

Ap&ing thk foregoing principles, we conclude that membership on the 

board is an office of trust under the United States. Fit, and niost important, the 

position is created by federal law and a board member ls appointed by the President 

with the advice and consent of the Senate. In addition, thi board’s duties are 

awhile the mode of appointment is relevant to whether a position is one “under the United 

States,’ see, es, Attorney General Opinion MW-360 at 2, this oft& has expressly eschewed reliance on 

mode of appointment as the sole factor in determining whether a person holds “aa office of profti or 

trust,’ or is merely an employee or serves solely in an advisory position. See Letter Advicory No. 85 

(1974). 

p. 247 
The Honorable Thomas R. Phillips - Page 6 -' (DM-49) 

imposed by federal law. Thus, we conclude that board membership is a position 

“under the United States” for purposes of the Texas Constitution. See Attorney 

General Gpinion h4W-360 at 2 (concluding that position created by federal law and 

appointed by the President was a position “under the United States”). Second, a 

board member is not merely a ministerial employee of the federal government nor 

does a board member serve solely in an advisory capacity. Indeed, the board 

members are expressly charged with the duty to establish policy and funding 

priorities for the institute, to issue rules and regulations for the institute, and to 

distribute federal funds in the form of grants and cooperative agreements or 

contracts. See 42 U.S.C. 5 10703(k).’ Thus, we conclude that the federal organic 

statute delegates to a member of the board some of the sovereign functions of the 

United States Government independent of any superior authority. Finally, a board 

member generally serves for fixed three-year terms and is required to attend 

meetings on at least a quarterly basis. Thus, we conclude that the position involves 

continuous service for a substantial period of time such that it clearly constitutes “an 

office.” 

In sum, membership on the board of the institute is an office of trust under 

the United States for purposes of the dual office holding prohibition of article XVI, 

section 12, of the Texas Constitution. The exemptions to the general prohibitions’ 

against dual office holding set forth in article XVI, section 40, do not apply to the 

office of justice of the Supreme Court of Texas or the office of member of the board 

of the institute. Therefore, a justice of the .Supreme Court of Texas would be 

precluded from accepting an appointment as a member of the board under the 

Texas Constitutior~ 

,As noted above, the institute’s organic statute provides that members of the 

board are not to be considered officers or employees of the United States. See 42 

U.K. 0 10703(e). In light of our conclusion that a-member of the board holds “an 

office of profit or trust under the United States” for purposes of article XVI, section 

12, of the Texas Constitution, we must consider whether the supremacy clause of the 

‘The legislative history of the statute indicates that prior to the creation of the. institute, federal 

funding for projects involving state courts was admiied by the United States Department of 

hstia. See S. Rep. No. 480,9&h &IS., 2d SCSS. 3, npdtwd in 19S4 U.S. CODE CONO. & ADMIN. 

News 572S. 931. 

p. 2.48 
The Honorable Thomas R. Phillips i. Page” 7 (DM-49) 

United States Constitutions requires the federal organic statute’s characterization of 

the position to prevail over that compelled by Texas law.9 We conclude that it does 

not. 

The United States Supreme Court has held that state law is pre-empted 

under the supremacy clause under three circumstances. Engbh v. General Eke Co., 

110 S.Ct. 2270,2275 (1990). First, Congress can define explicitly the extent to which 

its enactments pre-empt state law. Id Second, in the absence of explicit statutory 

language, state law is pre-empted where it regulates conduct in a field that Congress 

intended the federal government to occupy exclusively. Id Where the field is one 

that has been traditionally occupied by the states, congressional intent to supersede 

state laws must be “clear and manifest.” Id (citations omitted). Finally, state law is 

pre-empted to the extent it actually conflicts with federal law. Thus, the Court has 

found pre-emption where it is impossible for a private party to comply with both 

state and federal requirements, or where state law “stands as an obstacle to the 

accomplishment and execution of the full purposes and objectives of Congress.” Id 

(citations omitted). 

None of these circumstances is applicable here. First, Congress has not 

explicitly stated the extent to which the organic statute pre-empts ,state laws 

pertaining to dual office holding or the characterization of federally-created 

positions under such laws. Indeed, as discussed below, Congress appears to have 

had no such purpose. 

Second, the field of state dual office holding prohibitions is one that has been 

traditionally occupied by the states. Thus, congressional intent to supersede such 

state laws must be clear and manifest. Id Nothing in the legislative history of the 

organic statute indicates that Congress intended the federal government to regulate 

state office holders’ capacity to serve on the board or to otherwise hold federallycreated offices, let alone to regulate that field exclusively.. Indeed,’ the legislative 

history of the organic statute suggests that Congress had a very different purpose in 

mind in providing that members of the board would not be considered officers or 

employees of the United States. See S. Rep. No. 480, 98th Gong., 2d Sess. 1, 

W.S. consl. art. vl, cl. 2 

%‘hcn a federal statute and a state constitution conflict,. the supremacy clause of the United 

States Constitution requires that the provisions of the federal statute prevail. Alubamu-Coushutfa 

Indian Tnic of Taos Y. Mutar, 650 F. Supp. 2S2,289 (W.D. Tex. 1986). 

p. 249 
The Honorable Thomas R. Phillips - Page 8 (DM-49) 

reprinted in 1984 U.S. CODE CONG. & ADMPI. NEWS 5728. Prior to the enactment 

of the organic statute, the United States Department of Justice and the state 

executive branches had been directly involved in the appropriation of federal funds 

for the improvement of state judicial administration. This arrangement threatened 

to upset the delicate balance between the branches of government and the federal 

and state governments, implicating the federal constitutional law doctrines of 

separation of powers and federalism. See id at 5739-40,5742.*0 Congress appears 

to have drafted the organic statute to provide that the institute is not an 

instrumentality of the United States and that members of the board are not to be 

considered officers or employees of the United States to remove the administration 

of federal funding for state courts from the. executive branch of the federal 

government in an attempt to avoid those constitutional difficulties. Id at 5739. 

Thus, we conclude that Congress did not intend to define membership on the board 

for purposes of state laws pertaining to dual office holding or to otherwise regulate 

state office holders’ capacity to serve on the board. 

Finally, we conclude that article XVI, section 12, of the Texas Constitution is 

not pre-empted on the ground that it actually conflicts with federal law. This is not 

a case where conflicting la% make it impossible for a private party to comply with 

both state and federal requirements. The federal organic statute does not require 

individuals to serve as members of the board of the institute. Nor is this a case 

where state law stands as an obstacle to the accomplishment of the objectives of 

Congress. First, the general objective of the federal organic statute is to improve 

the quality of the administration of justice in state courts primarily by providing 

funding to state courts and other entities. The Texas Constitution’s prohibition 

against justices of the Supreme Court of Texas serving as members of the board 

does not thwart that general objective. Second, the purpose of the particular section 

loAs the Senate Report states, 

there were scrio~ diff~cultiu with an arrangcmcnt, whemby a dcps&ent of 

Um federal executiw branch . ..was in a position to idluena, hy fimdiag 

dwisionr, prcgrams undertaken by or on bcldf of state and local courts. This 

was particularly ironic because in the federal govemmcnt. in an attempt to 

maintain the delicate balana of separation of pnvcrs, the control of fcdcrsl 

funding to improve the federal courts was removed from the Departmeot of 

Justia and placed independently in the judicial brand! of the federal 

governmcnl. 

Id. at 5739. 

p. 250 
The Honorable Thomas R. Phillips - Page 9 (DM-49) 

that provides that members of the board shall not be considered officers or 

employees of the United States appears to be to preserve the balance between the 

branches of government and between the federal and state governments. The fact 

that justices of the Supreme Court of Texas are precluded from serving on the board 

does not thwart that specific objective. In sum, because Congress’ concern in 

adopting title 42, section 10703(e), of the United States Code was to remove the 

administration of federal funding for state courts from the executive branch of the 

federal government to avoid federal constitutional diffkulties and not to regulate 

state office holding, we conclude that the federal statute is not in actual conflict with 

article XVI, section 12, of the Texas Constitution. 

SUMMARY 

A justice of the Supreme Court of Texas holds “an office of 

profit or trust under this State” for purposes of article XVI, 

section 12, of the Texas Constitution, which prohibits dual office 

holding. A member of the Board of Directors of .the State 

Justice Institute, created pursuant to title 42, section 10701 et 

seq., of the United State Code holds an office of trust under the 

United~ States for purposes of article XVI, section 12. The 

federal statute which provides that board members shall not be 

considered officers or employees of the United States does not 

pre-empt the state dual office holding provision- Therefore, 

article XVI, section 12, bars a justice of the Supreme Court of 

Texas from accepting an appointment as a member of the board. 

DAN MORALES 

Attorney General of Texas 

p. 251 
The Honorable Thomas R. Phillips - Page 10 (DM-49) 

WILL. PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RBNEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General 

P. 252