THE ATJFORNTEY GENERAL 

OF TEXAS 

Hon. Olin Culberson 

Chairman 

Railroad Commission of Texas 

Austin, Texas 

Opinion No. W-201 

Re: Can a Railroad Commission employee also 

serve as a Joint Board member for the 

State of Texas under appointment by the 

Interstate Commerce Commission, and 

whether such membership constitutes an 

office or position of honor or trust? 

Dear Mr.. Culberson:. 

You have requested the opinion of this office in 

answer to the following question: 

“Can a Railroad Commission employee also 

serve as a Joint Board member for the State of 

Texas under appointment by the Interstate Commerce Commission, and whether such membership 

constitutes an office or position of honor or 

trust?” 

Part II of the Interstate Commerce Act, Section 205 

(Title 49 U.S.C. A., Ch. 8, Sec. 305) provides that the Interstate Commerce Commission shall, under certain circumstances, 

when the operations of motor carriers proposed to be conducted 

involve not more th.:n, three states, refer to a joint 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 Commerce Commission under the Interstate Commerce Act. 

Section 305(b) provides that when the Interstate Commerce Commission (hereinafter referred.to as the Commission) is 

required to refer any matter to a joint board, the Commission 

shall create a joint board to consider the matter when referred, 

and to recommend an appropriate order thereon. The joint boards 

consist of a member from each state in which the motor carrier 

operations involved are, or are proposed to be conducted. The 
Hon. Olin Culberson, page 2 (blw-201) 

members from such states shall be nominated by the ,RQ& of 

such state from its own membership, or otherwise. 

Section 303(2) defines the term, @@boardl’ as the 

commission, board, or officials (by whatever name designated 

in the laws of a State) which, under the laws of any State 

in which any part of the services in interstate commerce regulated by the Interstate Commerce Bet 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. The Railroad 

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 a member 

upon the joint board any nominee approved by it. Members of 

joint boards, when fuxtioning under the oqder of appointment 

of the Commission, do not receive any salary, but do receive 

such allowances for travel and subsistence expenses as the Commission shall provide. Joint board members may use Government 

transportation requests when traveling in connection with their 

duties as joint board members. The joint board continues in 

existence for the consideration of matters referred to it by 

the Commission until such time as its existence may be terroinated by the Commission, and a substitution of membership upon 

the joint board from any State may be made at any time by nomination and appointment in the same manner as the original tiomination and appointment. 

Section 305(d) authorizes the members of the Commission and the Commission’s examiners and joint boards to adminis’:er o::.ths, subpoena witnesses to testify and produce books, 

papers, etc., and to tske te3Xmony by deposition as to any 

matter under investigation. 

Section jOj(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 no member of the joint 

board shall hold any official relation to or own any securities of, or be in any manner pecuniarily 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 

same rights, duties, powers and jurisdiction as are . . . 

vested in members . . . of E he Commission to whom a matter is 

referred for hearing and the recommendation of an appropriate 

order thereon. . . .I1 Orders recommended by joint boards shall 

be filed with the Commission and shall become orders of the Commission and become effective'in the same manner, and shall be 

subject to the same procedure as provided in the case of orders 

recommended by members or examiners under Section 17 of the Interstate Commerce Act. 

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 members to 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 members be, and the 

same is hereby, approved and the said persons so 

nominated be, and each of them is hereby constituted and appointed a substitute member of 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 same hearing, is hereby authorized in 

the event the above-named member is unable to sit 

as d member of any said joint boards in any referred matter, to sit upon such joint board as a member thereof with all of the rights, duties, and 

powers authorized by the Interstate Commerce Act, 

to be conferred upon the members of joint boards, 

in any matter referred thereto; . . .I' 

The examiners of the Motor Transportation Division of 

the Railroad Commission of Texas hold positions of honor, trust 

and profit under the State of Texas. Such employees receive 

such salaries as may be 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 ~draw nor pay a warrant upon the Treasury 

in favor of eny person, for salary or compensation 

as agent, officer 'or appointee, who holds at the 

same time any other 'office or position of honor, 

trust or profit, under this State or the United 

States, ~except as provided in this Constitution.'Q 
Hon. Olin Culberson, page 4 (WW-201) 

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

A joint board member receives no emoluments or profits for his services upon such board. Therefore, the answe~r 

to your question must be based necessarily upon whether a joint 

board member holds or occupies an office or position of honor 

and trust. 

Among the criteria in determining the distinction between a l~position'l and an "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 and not by contract; (3) the fixing of the 

duration and term of office; and (4) the nature of the duties 

to be performed and the powers which may be exercised. Rendrlckg 

y S a e 49 S.W. 705 (Civ.App. 1899); 

T;x.~~&; 55 S.W. 120, I.22 (1gGC). 

Kimbrough v. Rarnett, 93 

A joint board member appointed by the Interstate Commerce Commission, an agency of the Federal Government, upon 

recommendation of the Railroad Commission of Texas prforms a 

semi-judicial duty very similar to that of a Master in Chancery 

appointed by a Court. He sits as a member of the semi-judicial 

tribunal which, after hearing and weighing the evidence and 

applying the law governing the facts developed, makes recommendations to the Commission that an appropriate order be entered. 

Ris membership uPon the joint board continues in lull force until vacated by an appropriate order by the Commission. 

When the method of the appointment as a member of the 

joint board, the tenure or dsation of the membership thereon, 

ad the powers and duties delegated to .znd iulposed upon a joint 

bo&rd m=mber are t;.-:eil into c.;nsiderL..:ion, it is the opinion of 

this office that ;i member.of such board is holdin;: an office of 

honor and trust under the United States Government. Since such 

joint board member is :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-wing or paying 

any warrant upon the State Treasury for salary or compensation 

of the employee of the Railroad Commission while serving as a 

member of the joint board. 

While SerVing upon a joint board the joint board member is performing a function as a representative of the State 

of Texas on that tribunal, the duties being somewhat similar 

to those performed by the substitute joint member while acting 

as an examiner for the Motor Transportation Division of the 
Hon. 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 to j&g&state commerce while the jurisdiction of the Railroad Commission of Texas is confined to &- 

-state commerce. Hence, the holding of an office of honor 

and trust under the Federal Government is not incompatible with 

;;l;;;Esa position of honor, trust and emolument under the State 

. 

A substitute member of a joint board appointed 

by the Interstate Commerce Commission under the provisions of Title 49, U.S.C.A., Section 305 (Interstate Commerce Act, Part II), holds an office of 

honor and trust under the United States Government 

and while serving as a member of a joint board he 

cannot receive any salary or compensation for his 

services as an examiner for the Railroad Commission 

of Texas under the provisions of Article XVI, Section 33 of the Constitution of Texas. The office of 

a joint board member and the position of an employee 

of the Railroad Commission of Texas are not incompatible. 

Very truly yours, 

WILL WILSON 

Attorney GeDeral of Texas 

BY 

C. N. Richards 

CKR:wb Hssistant 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler, Chairman 

Jas. N. Ludlum 

W. V. Geppert 

J. C. Davis Jr. 

Marietta Mc®or Payne 

REVIl&!ED FOR THE ATTORNEY GENERAL 

BY: 130. P. Blackburn