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Honorable Byron Tunnel1 Speaker ‘

. House of Representatives Austin, Texan
Re: Compensation of a Member of the House of Repreeentatlves who Is also employed Dear Mr. Tunnell: by the Toledo Bend ProJect.

Your request for an opinion reads ae followe:

“I request that you advise mewhether or hot I can legally authorize expenditure6 of monies to and for a member of the Houae of Representatives under the facts eet out.

“The Honorable SamF. Colllne ‘of Newton, Texas, Representative, Dletrlct 7, conelstl~ of Jasper, Newton, Tyler cind Sabine Counties, was employed by the Toledo Bend Project effective day 

### 31,1963. At that time, In an abundance of caution, Repreeentatlve Collins requested that he be taken off the monthly House of Representative8 Member’s payroll and since which time he has not’ received his monthly compensation.

“I reiuest that you advlee me:

“1

. .
Doea Representative Coll#iet employment preclude him from receiving the Conetitutlonal salary of ‘a memberof the House, of Rtpresentativee? “2.



### "3. If your.anew& to &eetlon no. 

### 1 is In the negative; can Representative‘ Collins now be paid for the montha he haa not received such’ealary and if 80; .can he be p&Id In a lump sum? If your answer to que.stion’ no. 1 ie In the arflrmatlve, does Representative

. . -1065-Hon. E!yron Tunnell, 

### page2 (C221)

“4. Colllne~.employment preclude him from using Houee Contingent Expense funds during the ‘Interim? Representative Collins Is also a member of the Texas Leglelatlve Council. 

### Ii your anewer to quaetlon no.’ 1 ia In the affirmative, can Repreeentatlve Colllne be relmbure,ed within the Statutorypmount for expeneee’ Incurred in cons&tlon with hi8 Councll~actlvltlee?” Representative Colllne was employed a8 a Project Supervisor and hle dutiee conslet o? the gqneral eupervlelon of the Toledo Bend Project. .The Toledo Bend Project Is a joint effort of the Sablne Rlver Authority of Texae and the Sablne River Authority, State of Loulelanar~ for the building and operation of a damand reeervolr project on the Sablne~River at Toledo Bend. This joint effort’ie pursuant to an agreement entered Into by the Sablne River Authority of Texas and the Sablne River Authority, State-of Louisiana on the 

### 6thday of July, 1961, and supplemental agreement entered Into on the 5th day of April, 1962. The Sablne River Authority of Texas le “a governmental agency o ’f the State of Texas, a body politic and corporate, vested with all authority as such under the C.onetltutlon and.lawe of the State” created by the provlelone of Article 8280-133, Vernon18 Civil Statutes. Therefore, under the facts eubmltted~by you, Representative Collins Is an em-
‘ployee of an agency of the State.

Section 40 OSArticle XVI of the Conetltutlon of Texas provides:

“No person shall hold or exercise, at the same

time, more than one Civil Office of emolument, except

. . .‘I (Exceptions not applicable). Sectlon 

### 33 of~'Artfcle XVI'o‘r the Coi&t’~tikldn’ O? Texas provides:

“The Accounting Officers of this State shall

neither draw nor pay a warrant upon the”Treasury in favdr of any p&eon for salary or compensation as agent, officer or appointee , who holds at the same tlmi any other office or position or honor’, tNst or profit, under this. State of the United States, except as prescribed in this Constitution. :. . .I’ (Exceptlone not applicable). In Attorney @eneralle Opinion V-308’(1947), It was held that although a Memberof the Leglslature’may accept employment’ae -1066-Hon. &von Bunnell, page 3 (C-221)

Executive Secretary 

### of the Board of Regents of the Texas State Teachers Colleges, the Comptroller,would not be atithorlzed to Issue a warrant In payment of 

### compe~eatlon. In discussing the dlfference.between an officer and an employee, it was pointed * out In this opinion:

11

. . . An !offlcer’ exercises some governme,ntal funct&n; he la Snveeted with some pbrtlon of the sovereignty. A public 

### officeIs a right, authority and duty created and conferred by law, the 

### tenureof which Is not transient, occasional, or lncldental. Amongthe usual criteria given for determining whether an employment Is a publlc office or not, are’the requirements of an offlclal oath and bond; that the powers are granted and conferred by law and not by‘ contract. The ‘officer’ Is -generally answerable for misfeasance In office,, and Is responsible for the acts of his ‘employees.’ Eimployment, on the other hand, Is established-by contract. It Involved performing such duties as are prescribed by.the employing agent. The ‘employee’ Is often subject to dlscharge at the will of the ‘offleer’ to whomhe Is reeDonsible. These matters are full-v discussed 

### In Loard v.w, 137 S.W. (2cl.880, w&t refused; Knox -~ ~S$.ii41 S.W. (2d) 698, writ refused; Meek,

?icere, Ch. i; 42 Am.Jur.,Fubllc~Offlcere, Sec

### tlons 2-16: 14 Tex.Jur.. kQbllc Of'flcers. Sections 2- 4; and In Gotatlons 53 A.L.R. A.L.R. 140 A.L.R. 333.

1076." 595, 93
In Attorney Oeneral’e 

### OpinionR-972 (1947), it 

### was held that a legislator could not receive pay as a’Member of the Legislature 

### If such 

### personwas the executive secretary of 

### a county retirement system, holding that, while such position does not constitute an Office within the 

### meaningof Section40 of Article XVI of the Constitution of Texas, such position Is one of,honor, trust or profit under this State, within the meaning of 

### Section33 of Article XVI of the Constitution of Texas. A similar conclusion was reached .ln 

### AttorneyOeneralte 

### OpinionO-6578 (1945) lhvolvlng membershlp In the House of Represenatlves and at the same time, employment with a River Authority. Therefore, It Is 

### our opinionthat under the facts eubmltted in your request, Repreeentatlve Colllne~ position with the Toledo Bend Project Is not an office within the meaning of Section 40 of Artltile'i(VI of the Constitution of Texas; rather, his position is that 

### of an 

### employee.

While such poeltlon does not constitute an office, It IS one of honor, trust or profit under this State. The position carries with 

### It em~lumenteof employment. !lhe Toledo Rend Prodect calls for an expenditure of large sums of public monies. -1067-Hon. Byron Tunnell, p&e 4 (C-221)

. i You are therefore advised that; uhder the faote bubmltted, -RepFeeentative’ Colli’rib’ employment preoluiltij him, ~whlle so emfilioged, Trti receiving his salary as a Memberof the House o? Repreeentativi%3.

In vlen sf.our’anewer to ’gotir question no. 1, 

### It Is not necessary to answer, question no. 2. ” In answer to question no. ,3; it. ta’ not&d that.Sdction 

### 33 of ArtioU ‘XvIjof ,the Constitution of Texas is etrlotl~ limited to a’warrkht Upon the Treasury in favor of.any peraon ‘for sale;- ry br’oimp&ieatlon as agent, offloer.or appointee” And therefore doe¬ apply to~the’laeuanoe~of warranter for the payment of expenses to which such person would otherwise be ent1tU.d.. merefore, .you-.&re advised that ,Representatlve Collins’ einployment dde’e~liot preclude he from using House contingent expense funds during the Interin:

In answer to your fourth question, you are likewise advieed that Representative Collins maybe reimbursed within the atatwtOry amount for expense8 Incurred 

### In connection with his actlvlties as a member of the Texas Legislative Council. SUMMARY Although a Memberof the Legislature la ell to accept an employment (Project Supervisor 7lble on the Toledo Bend Project, a joint effort of the Sablne River Authority of Texas and the Sablne River Au- ’ thoritg, &ate of.Loulslana, he Is not eligible, while 40 employed, to receive his salary as a Member of the Legislature, In view of the provisions of Sedtlon 

### 33of Article XVI of~the Conatltutlon of Teliaa

. Such prohibition, however, does not pre

### clude.hlmfrom 

### receivingreimbursement for expenses as a Memberof the Legislature or as a member of the Texas LegleZatlve Council. Yours very truly, WAQGORER

CARR Attorney General

JR:ms John Reeves~

-1068-_ - -

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### Hon.ByronBunnell, page5 (C-221)

APPROVED; OPINIONCoMMI'ITgE W. 

### V. QepPert,

Chalrmfq Lloyd -in 

### J. S.Bra&ewe11 HaloolmL. Qlok 

### APPROVgDFaRkATX4U4EYOBtlBRAL BYi Howard

W.Maps

-1069-