DAN MORALES

ATTORNEY GNERAL 

## QBffice

of tfy Plttocnep @i%weral &ate ofIEexas 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 ChiefJustice Phillips:

In your capacity as chairman ofthe Judicial Disticts Board,1you 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 ofthe Board ofDirectors (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. See42 U.S.C. 9 10701efseq. The purpose ofthe 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)xceptas tithe&se specifically provided in this chapter, the institute shall not be considered a department, agency, or instrumentality ofthe Federal Government,” id

‘See TCL Const. art.V,07a

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Q10704(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 sixjudges, 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 ofthe 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 ofChiefJustices. 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 Q10703(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 lawprecludes ajustice ofthe Supreme Court of Texas from serving as a member ofthe 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 civiloffice ofemolument.” Section 33provides:

The accounting officers in this State shall neither draw nor

25 U.S.C. D 552

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pay a warrant or check on funds ofthe 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 ofemolument, inviolation ofSection 40.

An electivejudgeship, a paid position, is a “civiloffice 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 ofthe board of the institute does not receive a salary and is entitled only to reasonable expenses,s and therefore does not hold a “civiloffice of emolument.” SeeAttorney 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 40also explicitly exeflph various state and federal offices (includingjustices 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 ofthe board ofthe institute,

% 42U&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 ofhonor, bwr orp@, under this State or the United States.” (Emphasis ad&d.) While section 40precluded a state o&x onlyfrom holding two ‘civil O&J ofemolument,’ i.e. compensated of&s, section 33precluded
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 anystate compensation for theirjudicial 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.isofbenefit to the State ofTexas or isrequired hythe State or Federal law,and there isno contlict withthe original oftkc for whichhe 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 1972amendment to Texas Constitution article XVI, sections33and 40);seeu&oAttorney General Opinion **H-5** (1973).

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Article XVI, section 12,provides:

No member of Congress, nor person holding or exercising any office ofprofit or trust, under the United States, or either of them, or under any foreign power, shrillbe eligible as a member ofthe Legislature, or hold or exercise any office ofprofit or trust under this State.

Section 12, except as provided by article XVI, section 40, generally precludes any person who holds an office ofprofit or trust under the State ofTexas from holding
an office ofprofit or trustunder 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 12is 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, “theprovision in the Texas constitution establishes anabsolute

prohibirion

against double office holding, and hence it is immaterial whether the offices would be considered incompatible at common law.” (Emphasis added.) The consequences ofholding 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,
nowrit); Lowev.State, 201 S.W.986,987 (Tex. &im. App. 1918);Attorney General Opinion M-409.

Ajustice of the Supreme Court ofT&as clearly,holds an “office of profit or trust under the State ofTexas-” SeeLowev.Skate, **sups.** Thus, ajustice isprecluded from serving as a member ofthe board ofthe institute ifthat position is an office of profit or trust under the United States. Pursuant to title 42, section 10703(d), ofthe, 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 ofprofit under article XVI, section 12). Therefore, the critical issue iswhether the position is an office oftrust under the United States. Id

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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, includingits mode ofappointments and statutory genesis, to determine whether it is

“underthe United States.” See Attorney General Opinion MW-360 at 2; cj KVltiv. Potts, 377 S.W.2d 622 (Tex. 1964) (holding that a councilman of a home rule city held an “officeunder 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 iswhether the person is to be delegated “someofthe sovereign functions ofthe United States Government.” Attorney General Opinion MW-360 at 2 (quoting Attorney General Opinion C-527 (1965)). “Anoffice”isa 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.
LetterAdvisory 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); AMneIndep SchoolD& v.Smndlq~, 280S.W.2d578,583 (Tw 1955). Finally, this officehas also considered, to a lesser extent, the stability and duration ofa 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 iscreated 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 themodeofappointment is relevant to whether a position is one “under the United States,’see,es, Attorney General Opinion MW-360at2,this oft& has expresslyeschewed reliance on mode ofappointment

asthesolefactor

indetermining

whether aperson holds “aaoffice ofproftior trust,’ or is merely an employee or serves solely in an advisoryposition. See Letter Advicory No. 85 (1974).

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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-360at 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 ofany 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 oftime 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 ofthe 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 officeofjustice ofthe Supreme Court ofTexas or the office ofmember ofthe 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~

,Asnoted 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 officeofprofit or trust under the United States”for purposes of article XVI, section 12,ofthe Texas Constitution, we must consider whether the supremacy clause ofthe

‘The legislativehistory ofthe statute indicates that prior to the creation ofthe.institute, federal funding for projects

involving statecourtswasadmiied by the United States Department of hstia. See S. Rep. No. 480,9&h &IS., 2d SCSS. 3, npdtwd in 19S4U.S. CODECONO.& ADMIN. News 572S.931.

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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., 110S.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 lawispre-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 lawsmust 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 ofthe 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 hadno suchpurpose. Second, the field ofstate dual office holding prohibitions is one that has been traditionally occupied by the states. Thus, congressional intent to supersede such state lawsmust 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 ofthe 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
%‘hcnafederal statute and a stateconstitution conflict,. thesupremacy

clause of the United StatesConstitution

requires thattheprovisions of thefederal statute prevail. Alubamu-Coushutfa Indian TnicofTaos Y.Mutar,650F.Supp. 2S2,289 (W.D.Tex. 1986).

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reprinted in 1984U.S. CODE CONG. & ADMPI.NEWS 5728. Prior to the enactment of the organic statute, the United States Department of Justice and the state executivebranches 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 ofpowers 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 ofthe 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 officeholders’ capacity to serve on the board. Finally, we conclude that article XVI, section 12,ofthe 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 ofjustice 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 ofthe particular section

loAsthe Senate Report states,
there were scrio~ diff~cultiu with an arrangcmcnt, whemby a dcps&ent of Umfederal executiw branch

. ..was in a position to idluena, hy fimdiag dwisionr, prcgrams undertaken byor 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.

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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 thatjustices ofthe Supreme Court ofTexas 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 officeholding, we conclude that the federal statute is not in actual conflict with article XVI, section 12,ofthe Texas Constitution.
SUMMARY

Ajustice of the Supreme Court ofTexas holds “an office of profit or trust under this State” for purposes of article XVI, section 12,ofthe 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., ofthe 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 ajustice of the Supreme Court of Texas from accepting an appointment as a member ofthe board.

DAN MORALES Attorney General ofTexas

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WILL.PRYOR First Assistant Attorney General

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General



### RBNEA HICKS SpecialAssistant Attorney General

MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney General

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