THE ATJFORNTEY GENERAL OF TEXAS

Hon. Olin Culberson Chairman Railroad Commission of Texas Austin, Texas Opinion No. W-201

Re: CanaRailroad Commission employee also serve as aJoint Board memberfor the State of Texas under appointment by the Interstate CommerceCommission, and whether such membership constitutes an office or position of honor or trust? Dear Mr..Culberson:.

Youhave requested the opinion of this office in answer to the following question:

“Can aRailroad Commission employee also serve as a Joint Board memberfor the State of Texas under appointment by the Interstate Commerce Commission, andwhether such membership constitutes an office or position of honor or trust?” Part II of the Interstate CommerceAct, Section 205 (Title 49U.S.C. A., Ch. 8, Sec. 305) provides that the Interstate CommerceCommission shall, under certain circumstances, whenthe operations of motor carriers proposed to be conducted involve not more th.:n,three states, refer to ajoint board for appropriate proceedin&e in which a hearing is r.equired or, in the opinion of the Commission, is desirable, certain applications for certificates or licenses or suspension of certificates or licenses or other matters committed to the jurisdiction of the Interstate CommerceCommission under the Interstate Commerce Act.Section 305(b) provides that whenthe Interstate Commerce Commission (hereinafter referred.to as the Commission) is required to refer anymatter to ajoint board, the Commission shall create ajoint board to consider the matter when referred, and to recommend an appropriate order thereon. Thejoint boards consist of a memberfrom each state in which the motor carrier operations involved are, or are proposed to be conducted. TheHon. Olin Culberson, page 2 (blw-201)

membersfrom such states shall be nominated by the ,RQ& of such state from its ownmembership, or otherwise.

Section 303(2) defines the term, @@boardl’as the commission, board, or officials (by whatever namedesignated in the laws of a State) which, under the laws of any State in which anypart of the services in interstate commerceregulated by the Interstate CommerceBet is performed,, has jurizdiction to grant and approve certificates of public convenience or necessity or permits to motor carriers, or otherwise,regulate the business of transportation by motor vehicle in intra-

. state commerce over the highways of such State. TheRailroad Commission of Texas is therefore the %oardt8 for the State of Texas. After the.borrd has submitted the nomination to the Commission, the Commlsrion is authorized tti appoint as amember upon the joint board anynominee approved by it. Membersof joint boards, when fuxtioning under the oqder of appointment of the Commission, donot receive any salary, but do receive such allowances for travel and subsistence expenses as the Commission shall provide. Joint board membersmayuse Government transportation requests whentraveling in connection with their duties as joint board members. The 

### jointboard continues in existence for the consideration of matters referred to it by the Commission until such time as its existence maybe terroinated by the Commission, and a substitution of membership upon the joint board from anyState maybe madeat any time by nomination andappointment in the samemanneras the original tiomination and appointment.

Section 305(d) authorizes the members of the Commission andthe Commission’s examiners andjoint boards to adminis’:er o::.ths, subpoena witnesses to testify and produce books, papers, etc., andto tske te3Xmony by deposition as to any matter under investigation.



### SectionjOj(e) provides that the joint boards shall give reasonable notice to parties interested in the proceedings to be conducted, :rith an opportunity for intervention therein, and to participate in the hearing.

Section 305(j) provides that nomemberof the joint board shall hold anyofficial relation to or ownany securities of, or be in anymannerpecuniarily interested in any motor carrier or any carriers by railroad, water, or other form of transportation.

Section 305(a) also provides .thatr “In acting upon such matters so referred, joint boards are vested with the:.i; .:

Hon. Olin Culberson, page 3 (WI-2011

samerights, duties, powers andjurisdiction as are

. . . vested in members

. . . of E he Commission to whomamatter is referred for hearing and the recommendation of an appropriate order thereon.

. . .I1 Orders recommendedbyjoint boards shall be filed with the Commission and shall become orders of the Commission andbecome effective'in the samemanner, and shall be subject to the sameprocedure as provided in the case of orders recommendedby membersor examiners under Section 17 of the Interstate CommerceAct.

Acting pursuant to Section 305, the Interstate Commerce Commission on January 29, 1957, upon the recommendation for nomination by the Railroad Commission of Texas, appointed certain examiners of the Motor Transportation Division of the Railroad Commission of Texas as substitute membersto sit upon certain joint boards theretofore creited by the Commission. The order of appointment reads in part as follows:

"It is further ordered That the nomination of the above-named substituie membersbe, andthe sameis hereby, approved and the said persons so nominated be, andeach of them is hereby constituted and appointed a substitute memberof each of the above-named joint boards for the above-named State, and each of them, but not more than one of them at the samehearing, is hereby authorized in the event the above-named memberis unable to sit as d memberof any said joint boards in any referred matter, to sit upon suchjoint board as a member thereof with all of the rights, duties, and powers authorized by the Interstate CommerceAct, to be conferred upon the membersof joint boards, in anymatter referred thereto;

. . .I' The examiners of the Motor Transportation Division of the Railroad Commission of Texas hold positions of honor, trust andprofit under the State of Texas. Such employees receive such salaries as maybe appropriated by the Legislature under the Appropriation Acts.

Article XVI, Section 33 of the Constitution of Texas, provides in part:

"The Bccounting Officers of this State shall neither ~drawnor pay awarrant upon the Treasury in favor of eny person, for salary or compensation as agent, officer 'or appointee, whoholds at the sametime any other 'office or position of honor, trust or profit, under this State or the United States, ~except as provided in this Constitution.'QHon. Olin Culberson, page 4 (WW-201)

gone of the excepted positions namedin Section 33are applicable to the question propounded.

Ajoint board memberreceives no emoluments or profits for his services upon such board. Therefore, the answe~r to your question must be based necessarily uponwhether ajoint board memberholds or occupies anoffice or position of honor andtrust. Amongthe criteria in determining the distinction between a l~position'l andan "officew are (1) whether the holder has been delegated.power to exercise a portion of the sovereign functions of the Government; (2) thatthe powers entrusted are conferred by law andnot by contract; (3) the fixing of the duration andterm of office; and (4) the nature of the duties to be performed and the powers which maybe exercised. Rendrlckg y S a e 49S.W. 705 (Civ.App. 1899); T;x.~~&; 

### 55S.W. 120, I.22 (1gGC). Kimbrough v. Rarnett, 93

Ajoint board memberappointed by the Interstate Commerce Commission, an agency of the Federal Government, upon recommendation of the Railroad Commission of Texas prformsa semi-judicial duty very similar to that of a Master in Chancery appointed by a Court. Hesits as a memberof the semi-judicial tribunal which, after hearing andweighing the evidence and applying the law governing the facts developed, makes recommendations to the Commission that an appropriate order be entered. Ris membership uPonthe joint board continues in lull force until vacated by an appropriate order by the Commission.

Whenthe method of the appointment as a memberof the joint board, the tenure or dsation of the membership thereon, ad the powers and duties delegated to .zndiulposed upon ajoint bo&rd m=mberare t;.-:eil into c.;nsiderL..:ion, it is the opinion of this office that ;imember.of such board is holdin;: an office of honor and trust under the United States Government. Since such joint board memberis :lso holding a position of emolument or profit under the State of Texas, the Comptroller of Public Accounts is prohibited, under the provisions of Article XVI, Section 33, of the ConstLiution of Texas, from dra-wingor paying anywarrant upon the State Treasury for salary or compensation of the employee of the Railroad Commission while serving as a memberof the joint board.

While SerVing upon ajoint board the joint board member is performing a function as a representative of the State of Texas on that tribunal, the duties being somewhatsimilar to those performed by the substitute joint memberwhile acting as an examiner for the Motor Transportation Division of theHon. Olin Culberson, page 

### 5 (WW-201)

Rciilroad Commission of Texas in conducting hearings to consider matters under the jurisdiction of the Railroad Commission of Texas, the only difference being that the jurisdiction of the joint board is confined toj&g&state commercewhile the jurisdiction of the Railroad Commission of Texas is confined to &- -state commerce. Hence, the holding of an office of honor andtrust under the Federal Government is not incompatible with ;;l;;;Esa position of honor, trust andemolument under the State

.

Asubstitute memberof ajoint board appointed by the Interstate CommerceCommission under the provisions of Title 49, U.S.C.A., Section 305(Interstate CommerceAct, Part II), holds anoffice of honor andtrust under the United States Government andwhile serving as a memberof ajoint board he cannot receive any salary or compensation for his services as anexaminer for the Railroad Commission of Texas under the provisions of Article XVI, Section 33of the Constitution of Texas. The office of ajoint board memberandthe position of an employee of the Railroad Commission of Texas are not incompatible. Very truly yours, WILLWILSON Attorney GeDeral of Texas

BY C. N. Richards Hssistant CKR:wb APPROVED: OPINIONCOMMITTEE H. Grady Chandler, Chairman Jas. N. Ludlum W.V. Geppert J. C. Davis Jr. Marietta Mc®or Payne REVIl&!ED

FORTHEATTORNEY

GENERAL BY: 130. P. Blackburn