* R-597 

PRICE DANIEL 

,,rrORNEY GENLRAI. 

OFFICE OF 

AUSTIN. TEXAS 

JULY 15, 1947 

Hon. C. H. Cavness 

State Auditor 

Capitol Building . 

Austin, Texas 

Opinion MO. V-303 

Re: Construtition of Article 16, Sections- 33 

and 4.0, Texas Constitution, as applied to 

an independent contractor. 

Dear Mr. Cavness: 

In your letters of June l&h 'and 3Gth, you 

state that Mr. Jac L. Gubbels is a full-time employee of 

the State Highway Department, holding the position of 

Department which is not &ted in the Appropriation Bill: 

"Head Landscape Architect n a position created by that 

His salary is paid'out of the State Treasury by warrant. 

During the time Mr. Gubbels was so employed, he‘entered 

into an agreement with the Austin Independent S&ho01 

District. through its Board of Trustees, to:.conduot a 

survey oh the Austin school system, and to'make recommendations for the locations for new sdhool sites In 

'connection with a program of develo ment 

year 1966, x 

through the' 

Under such contract, an while employed by 

the State Highway Department, Mr. Gubbels conducted the 

survey and made recommended locations for thirty-one 

school sites at an agreed fee of $750.00 per site. A 

check was issued to Mr. Gubbels on June 4, 1947, by the 

School Board in the sum of $23,250.00 for such services. 

You disclose that such check was paid from the proceeds 

of the sale of certain building-bonds issued "by the 

itzen Independent School District and/or the City of 

. .a You further state that: We have not ascertained as to whether any portion of Mr. Gubbels' School 

District duties were performed during working hours for 

tihicb he was being paxd as an employee of the State 

Highway Department." 

Your question is whether Mr. Gubbelst employment.by the Austin Inde endent 

rent wxth full-time P 

School District, concuremp oyment by the State of Texas, 

comes within the prohibition of Section 33 of Article 

16 of our State Constitution. 
Hon. C. H. Cavness - Page 2, V-303 

12 

At common law (adopted as the law of Texas in 

Article 1, R. C. S., when not inconsistent with our 

statutes or Constitution),, Where is no limit to the 

number of offices which may be held simultaneously by 

the same person, provided that neither of them is incompatible with any other; and this rule extends to 

offices of the highest grade, and which involve, for 

their adequate performance, the greatest expenditure of 

time and labor-v Throop, Public Officers, p. 33. It 

is stated in Vol. 2 (Rev.) McQuillin on Municipal Corporations, at page 144, that, "The same person may hold 

different offices which are not incompatible, unless 

forbidden by 1aw.v 43 Am. Jur. 153 recites that: "In 

the absence of express or implied statutory provision 

to the contrary, an officer who holds two or more-separate and distinct offices, not incompatible, is entitled to the compensation attached to each office." And 

in 46 Corpus Juris, page 941, it says, "At conrmon law 

the holding of one office does not of itself disqualify 

the incumbent from holding another office at the same' 

time, provided there is.no inconsistency in the functions of the two offices in question . . . The inconsistency . . . does not consist in the physical impossibility to discharge the duties of both offices, but 

lies rather in a conflict of interest, as where one is 

subordinate to the other . . . or' has the power to'remove the incumbent of the other, or to audit the ac- 

-counts of the other." 

. . 

Meechsm on Public Offices Fd Officers,' p. 

269, announces the rule to be that: . . . the mere 

physical impossibility of one person's performing the 

duties of the two offices as from the lack of time or 

the inability to be in two places at the same moment, 

is not the incompatibility here referred to. It must 

be an inconsistency in the functions of the two offices, as judge and clerk of the same court, claimant 

and auditor', and the like." 

Under Tekas cases, applying the common la% 

rule, various positions have been held incompatible; 

*hat is, city secretary and city recorder, State v. 

Brinkerhoff, 66 Tex. 45; school trustees and town aldermen, Thomas v. Abernathy County Line Inde endent 

School District (Comm. App.) 290 S.1152; *a 

position with the Texas Employment Service and also 

private employment imposing the same duties, A. G. Opinion O-2929; County Commissioner and trustee of a 
Hon. C. H. Cavness - Page 3, V-303 I3 

rural high school district, A. G. Opinion O-5145. See 

casenote by John W. Stayton, 12 Tex. Law Rev. 367. 

Ap lying these tests, it was held in A. G. Opinion . 

V- 8 3 (1947) that the offices of County Commissioner 

and trustee of an independent school district were not 

incompatible. That opinion quotes the following from 

Knuckles v. m of Education (Ky. 1938), 114 S.W. 

7-n "1. . . Gcompatibility is recognized whenever one is subordinate to the other . . . or is subject to supervision by the other, or where a contrarity 

and antagonism would result in the attempt by one person to discharge the duties of both.. . . two offices 

are incompatible where the incumbent of one has the 

power to remove the incumbent of the other, . . . and 

it also exists where the incumbent of one office has 

the power of appointment as to the other office, or to 

audit the accounts of another, nor to exercise a supervision over another.'" 

But the position Mr. Gubbels held with the 

Highway Department of'the State .in.conuection with 

hi&wa 

tests 2: 

beautification is not incompatible,,under the 

aid down by the common law,rules of decision, 

with that of locating school sites. The two have little or nothing in common. Neither is subordinate to 

the other. The incumbent of neither has a supervisory 

or appointive power over the other. There Is no inconsistency in the functions of either, as the word 

Vnconsistencyn is used in the common law. 

All of these authorities rovide, in substance, that eunless prohibited by P aw" a person may 

hold more than one position with the State, assuming 

no incompatibility. It therefore becomes necessary to 

see what prohibitions have been written into our law, 

and what changes have been made in the common law as 

applicable to Texas. 

The.‘framers of our Texas Constitution made 

two exceptions to the common law rule in Article 16, 

Sections 33 and 40. Section 40 

son shall hold or exercise,'at t R 

rovides that "No pe - 

e same time more t Earl 

one civil office of emolument . . . ." 

added throughout this opinion.) 

(EmpAasis is 

The distinction between a public nofficer" 

and an "employeev of the State is clearly drawn in an 

Attorney General's opinion of September 22, 1913, by 

C. M. Cureton, later Chief Justice of the Texas Supreme 
Hon. C. H. Cavness - Page 4, v-303 

24. 

court: An ~~officerv exercises some governmental function; 'he is invested with.some portion of the sovereignty. A public office is a right, authority, and duly 

created and conferred by law, the tenure of which is 

not transient, occasional or incidental. Among the criteria given for determining whether an employment is a 

public office or not, are the'requirements of an official oath and bond; that the powers are granted and conferred by law and not by contract. The vofficerv is 

generally answerable for misfeasance in office, and is 

responsible for acts of his "emp1oyees.v Employment, 

on the other hand, is established by contract. It involves performing such duties as are prescribed by the 

employing agent. The llemployee'l isoften subject to 

discharge at the will of the "officerv to whom he is 

responsible. It was specifically held in Olmstead 1. 

The Mayor of New York, 42 U. Y.,Super. Ct. 481, that a 

Edsca 

Gubbelsr 

arcmema position similar to that of Xr. 

who was regularly eroloyed in the Department 

of F'ublii Works, was an "ezplo$een of the Commissioners 

and'not a public officer. These matters are fully discussed in Loard v. Cs, 137 S.W. (2d) 880, writ refused; Knox v. Johnson, 141 S.W. (2d) 698, writrefused; 

Meechsm, Publicwrs, Ch. 1; 42 Am. Jur:, Public 

Officers, Sections 2-16; 34.Tex. Jur., Public Officers; 

Sections 2-4; and in Annotations 53 A.L.R. 595, 93 

A.L.R. 333, 40 A.L.R. 1076. 

,.C 

. Under the above'rule, the place Es. Gubbels 

holds with the Highway Department is.clesrly not an 

"office? but is a mere employment. Hence Section 40 is 

not applicable. 

The second prohibition laced in our Constitution is Section 33 of Article 1 % . 

tions of that section read: 

The pertinent por- 

"The accounting officers of this State 

shall neither draw nor 

the treasury in favor o T 

ay a warrant upon 

any person, for 

salary or compensation as agent, officer or 

appointee, who holds at the sane time any 

other office or position of honor, trust or 

profit under this State . . . .I' 

While school districts do not enjoy certain 

privileges and immunities enjoyed by the State (for example, the two year statute of limitation is applicable 

to them,,Hatcher v. State, 125 Tex. 84, 81 S.W. (2d) 
. . 

Hon. C. H. Cavness - Page 5, V-303 15 

499, noted 14 Tex. Law Rev. 4111, it is generally held 

that they are state agencies, erected and employed for 

the purpose of administering the State's system of-public schools. Love v_. Cit of Dallas, 120 Tex. 351, l+O 

S.W. (2d) 20. Lewis v. -I+- n e enwchool District of 

Austin, 139 feD,-l6*f mupuy v -. State, 

125 Tex. Crim. 595, 121 S.W. (2d) 1003; 37 Tex. Jur. 

865. 

Under the above cases, a person holding an 

"office or position of honor trust, or profit" in a 

school d.?.?trict, would be hoiding the same "under this 

State." 

~However, from the facts given by you, it appears that Mr. Gubbels did not'hold an "office" or 

flpositionn in the ordinary sense. He was not carried 

on the School District's payroll as an agent, servant, 

or employee. 

ly basis. 

He was not employed on a yearly or monthHe did not have auyone to tell him when,or 

how to-work, or Mat hours to keep; he was responsible 

to no one in the manner of his work; he had no desk, 

or office hours, or title. He was free to employ assistants without consulting anyone; and he, not the 

School Board, would have been responsible for his own 

and the torts of-,such assi+antsr ._' . 

An "independent contractorn is defined in 

POE;: 2 of the Restatement of the Law of Agency as 

*An independent contractor is a person who 

contra& with another to do something for him but who 

is not controlled by the other nor subject to the 

other's right to control with respect to his physical 

conduct in the performance of the undertaking." 

In distinguishing an independent contractor . 

from an employee or servant, 2 American Jurisprudence 

17 says, "An independent contractor may be distinguished from an agent in that he is a person who contracts with another to do something for him, but who 

is not controlled or subject to the control of the 

other in the performance of such contract, but only as 

to the result. A principal, on the other hand, has 

the right to control the conduct of an agent with respect to matters intrusted to him. The theory which 

in many cases is adopted to differentiate between an 

agent and an independent contractor is that one is to 

be regarded as an agent or an independent contractor 

according to whether he is subject to, or free from, 
Hon. c. H. Cavness - Page 6, V-303 

3% 

the control of the employer with respect to the details 

of the work. . . .v' 

Justice Shar in Industrial Indemnit Ex- 

;ham?~ =;:&I;! Q=~~531, 160 @ 7ja5, 

: "The general rule relating to independent contractors rests upon certain retognised tests; although such tests are not necessarily 

concurrent with each other, nor is each test in itself 

controlling. Such tests are: (1) The independent nature of his business; (2) his obligation to furnish 

necessary tools, supplies, and material to performthe 

job; (3) his right to control the progress of the work, 

except as to finalresults; (4) the time for which lie 

is employed; and (5) the method of payment, whether by 

time or by the job. There are other tests, but the 

foregoing are considered the essential tests upon.which 

such rule is based." 

Mr. Gubbels~ was not, therefore, under the above criteria, an agent or employee of the SchoolDistrict. 

tractor. 

His position was that of an independent condependent 

ment with 

of honor, 

tion 33. 

The question then remains as to whether an incontractor who enters on a contractual agreea school district holds an'noffice or 

trust, or profit," .- Pa within the meaning o 

A similar situation was presented to this de8 

artment in 1927. 

exas 

Mr. J. A.,Phillips, a member of the 

State Board of Accountmcv. desired to ascertain 

whether, while holding that position he could either 

(1) receive regular pay as an em loyee 

for doin accounting work, or (2 P 

of a state agency 

as an in 2 ependent 

perform such services 

contractor. In an able opinion by 

Mr. D. A. Simmons, later president of both the Texas Bar 

Association and the American Bar Association, this office said, 

t, . . . . Therefore, we can .advise without hesitancy that being a member of the 

State Board of Public Accountancy under the 

Constitution you could not be paid compensation as an agent, officer or an appointee of 

the State or any of its subdivisions. If, 

however, the employment you have in mind is 

as an independent contractor and not as an 
Hon. C. H. Cavness - Page 7, V-303 17 

\ t 

agent, officer or appointee of the St&e, 

we have found no provision of the Constitution or law which would prevent you from 

accepting such a contract while serving as 

a member of the State Board of Public Accountancy. We take it that this board has 

nothing to do with letting such contracts 

or fixing in any manner the compensation 

therefor." (Op. No. 2671, Bk. 62, p. 109; 

Biennial Report 1926-28, p. 406) 

That opinion has never been overruled and is 

similar to the situation presented by Mr. Gubbeis. It 

was followed in an opinion by First Assistant Attorney 

GeneralScott Gaines in 1937, wherein it was held that 

the County Auditor of Harris County could take independent contracts to audit the books of independent 

school districts where such services were not required 

of him as County Auditor. 

Many similar facts were involved fn.Cit and 

Count of San Francisco V. Boyd (Cal. Sup. 

d)='76; Th 

19.d Ins 

e city &arter provided that 'nAil 

z&+g?&;.; and offices shall be included'in the 

The citv made a contract to emolov an 

expert on traffic controi at a.large sala 

recommendations on traffic planning. The 'E 

ti, iakz, 

omptroller 

objected to the contract because, among other reasons, 

it failed to put the planner under -civil service. In 

holding the contract valid and in holding that he held 

neither an "office" nor a Cposition,n but was an independent contractor, the Court qaid, 

"The proposed contractor is not to 

be placed in any osition provided for by 

the charter. He b is to e engaged under a 

contract to do a specific job~and all of 

the assistants which he will employ from 

the typist in his'office to his most high- 

:fly paid engineer are to be instrumentalities 

of his own choosing and for whom he is to 

be responsible. They do not become.city 

employees in the sense of that word, as 

used in.reference to the classified service, 

but are to be employees of the engineer 

whose contract requires that he supply the 

city with estimates plans programs and 

reports, such as wiil enable the municipality to advance the public welfare by the 

improvement of conditions with respect to 
Hon. C. H. Cavness - Page 8, V-303 

3.8 

which his services will be rendered. 

1). . . . ,~Because the supervisors in the 

exercise of their discretion prefer to keep 

check upon the details of the cost of the 

work to be done by the contractor rather 

than to contract for the survey to be done 

for a lump sum does not alter the fact that 

the contractor is employed as an independent 

contractor to do a specific job and to get 

for himself a definite profit." 

It is therefore, our opinion that Sections 33 

and 40 of Artic i e 16 of our Constitution do not prohibit 

Mr. Gubbels from taking work as an independent contractor while em loyed by the State Highway Department. 

Xbether Mr. iz ubbels fully performed his duties to the 

Highway Department is a matter for the officials in 

charges of that Department to decide, and for which they 

are responsible. Under Section 14(c) of Senate Bill 

317, Acts 49th Legislature, p. 945 (State Departmental 

Appropriation Bill), it is provided that no salary shall 

be paid any person unless such person actually discharges his assigned duties. 

If Mr. Gubbels fully erformed all the duties 

assigned to him by the Highway 5 epartment during the 

hours required by the Departmental Appropriation Bill, 

it was not a violation of the law for him to perform, or 

have performed, the work required on the school locations "on his own time l1 

ment working hours. 

before and after Hi hway DepartOn the other hand, if i! edid not 

discharge the duties and work during the hours required, 

he is entitled to no pay for such period of time under 

the provisions of S. B. 317, supra. 

This opinion covers only the question of the 

legality of Mr. Gubbels' contract and payment as an in; 

dependent contractor by the School Board while he was 

acting and receiving pay as an employee of the Highway 

Department. The fact that the law does not prohibit 

such an arrangement should not be considered as an approval thereof as a matter of public policy. Neither 

should this opinion be considered an approval of the 

actions of either the School Board or the Highway Department as a matter of public policy. It is difficult 

to believe that State employees can engage in outside 

work of such magnitude without some loss of time and 
. . . 

Hon. C. H. Cavness - Page 9, V-303 

thought to the State's business. Similarly, in most 

cases, a School Board would not receive as much thought 

and planning on such a project from one who is occupied 

eight hours each day on another job. Be that as it 

may, until and unless the Legislature speaks on this 

subject, it is entirely up to the State Department and 

the School Board to determine their respective policies 

concerning the matters involved in this case. 

. - 

SUNMARY 

An employee of the State Highway Department is not prohibited by law from entering into and executing a contract, as an 

independent contractor, with an independent 

school district for work to be performed 

before and after Department hours, where 

there is no incompatibility in such work 

and no failure to.discharge State duties. 

Such practice.is questioned as a matter of 

public policy, but until the Legislature 

speaks on the subject, it is for the State 

Department and the School Board to decide 

their respective policies in such matters. 

(Construing Texas Constitution, Art. 16, 

Sections 33 and 40.) 

Yours very truly, 

ATTORREY GENERAL OF TEXAS 

W 

Joe R. Greenhill 

Executive Assistant 

APPROVED: 

i!iz%!ik 

JRG:erc