-- . 

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 me whether 

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 Sam F. 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 member of 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, page 2 (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 6th day 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 OS Article 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 Member of 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 office Is a right, authority and duty created and conferred by law, the 

tenure of which Is not transient, occasional, or lncldental. Among the 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 whom he 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, Sectlons 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 Opinion R-972 (1947), it was held that 

a legislator could not receive pay as a’Member of the Legislature 

If such person was the executive secretary of a county retirement 

system, holding that, while such position does not constitute an 

Office within the meaning of Section 40 of Article XVI of the Constitution of Texas, such position Is one of,honor, trust or profit 

under this State, within the meaning of Section 33 of Article XVI 

of the Constitution of Texas. A similar conclusion was reached .ln 

Attorney Oeneralte Opinion O-6578 (1945) lhvolvlng membershlp In 

the House of Represenatlves and at the same time, employment with a 

River Authority. Therefore, It Is our opinion that 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~lumente of 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 Member of 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 may be reimbursed within the atatwtOry amount for expense8 Incurred In connection with his actlvlties as a member of the Texas Legislative Council. 

SUMMARY 

Although a Member of the Legislature la ell 

to accept an employment (Project Supervisor 7 

lble 

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 33 of Article XVI of~the Conatltutlon of 

Teliaa . Such prohibition, however, does not preclude.hlm from receiving reimbursement for expenses 

as a Member of the Legislature or as a member of 

the Texas LegleZatlve Council. 

Yours very truly, 

WAQGORER CARR 

Attorney General 

JR:ms 

John Reeves~ 

-1068- 
_ - 

- 

-- . *’ 

Hon. Byron Bunnell, page 5 (C-221) 

APPROVED; 

OPINION CoMMI'ITgE 

W. V. QepPert, Chalrmfq 

Lloyd -in 

J. S. Bra&ewe11 

Haloolm L. Qlok 

APPROVgDFaRkATX4U4EYOBtlBRAL 

BYi Howard W. Maps 

-1069-