* 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 independentcontractor.

Dear Mr. Cavness:

In your letters of June l&h 'and3Gth, you state that Mr. Jac L. Gubbels is a full-timeemployeeof the State Highway Department,holding the position of
Departmentwhich is not &ted in the AppropriationBill: "Head LandscapeArchitect 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 agreementwith the Austin IndependentS&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 employedby the State Highway Department,Mr. Gubbels conductedthe survey and made recommendedlocations 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 disclosethat such check was paid from the proceeds of the sale of certainbuilding-bondsissued "by the itzen IndependentSchool 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 performedduring 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, comeswithin the prohibitionof Section 33 of Article 16 of our State Constitution.Hon. C. H. Cavness - Page 2, V-303



## 12

At commonlaw (adoptedas the law of Texas in Article 1, R. C. S., when not inconsistent with our statutesor Constitution),, Where is no limit to the number of officeswhich may be held simultaneously by the same person,providedthat neither of them is incompatiblewith any other; and this rule extendsto offices of the highestgrade, and which involve,for their adequateperformance, the greatest expenditure of time and labor-v Throop, Public Officers,p. 33. It is stated in Vol. 2 (Rev.)McQuillin on MunicipalCorporations,at page 144, that, "The same personmay hold different officeswhich are not incompatible, unless forbiddenby 1aw.v 43 Am. Jur. 153 recitesthat: "In the absence of express or implied statutoryprovision to the contrary,an officerwho holds two or more-separate and distinctoffices,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 incumbentfrom holding another office at the same' time, providedthere is.no inconsistencyin the functions of the two offices in question

. . . The inconsistency

. . . does not consist in the physicalimpossibility to dischargethe duties of both offices, but lies rather in a conflictof interest, as where one is subordinateto the other

. . . or' has the power to'remove the incumbentof the other, or to audit the ac- -countsof the other."

. .

Meechsm on Public Offices Fd Officers,' p. 269, announcesthe 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 inabilityto 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 judgeand clerk of the same court, claimant and auditor',

and the like."

Under Tekas cases, applying the commonla% rule, various positionshave been held incompatible; *hat is, city secretaryand city recorder, State v. Brinkerhoff,66 Tex. 45; school trustees and town aldermen,Thomas v. AbernathyCounty Line Inde endent School District (Comm.App.) 290 S.1152; *a positionwith the Texas Employment Service and also private employmentimposing the same duties,A. G. Opinion O-2929;County Commissionerand trustee of aHon. 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

. 8 V- 3 (1947)that the offices of County Commissioner and trustee of an independentschool districtwere not incompatible. That opinion quotes the following from Knuckles v. m of Education (Ky. 1938), 114 S.W. 7-n "1.

. . Gcompatibility is recognizedwhenever one is subordinateto the other

. . . or is subject to supervisionby the other, or where a contrarity and antagonismwould 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 incumbentof the other,

. . . and it also existswhere the incumbent of one office has the power of appointmentas to the other office, or to audit the accountsof another,norto exercise a supervision over another.'"

But the positionMr. Gubbels held with the Highway Department of'the State .in.conuection with hi&wa tests 2:

beautificationis 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 subordinateto the other. The incumbentof neitherhas a supervisory 

### or appointivepower over the other. There Is no inconsistencyin the functionsof either, as the word Vnconsistencyn is used in the common law.

All of these authorities rovide, in substance, that eunless prohibitedby Paw" a person may hold more than one positionwith the State, assuming
no incompatibility. It thereforebecomes necessary to see what prohibitions have been written into our law, and what changeshave been made in the common law as applicableto Texas.

The.‘framers

of our Texas Constitutionmade two exceptionsto the common law rule in Article 16, Sections 33 and 40. Section 40 son shall hold or exercise,'attRrovides that "No pe - e same time more t Earl
one civil office of emolument

. . . ." added throughoutthis opinion.) (EmpAasisis

The distinctionbetween a public nofficer" and an "employeevof 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 SupremeHon. 

### C. H. Cavness - Page 4, v-303

24.

court: An ~~officerv exercisessome governmentalfunction; 'he

is invested

with.some portion of the sovereignty. A public office is a right, authority,and duly created and conferredby law, the tenure of which is not transient,occasionalor incidental. Among the criteria given for determining whether an employmentis 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 vofficervis generallyanswerablefor misfeasancein office, and is responsiblefor acts of his "emp1oyees.v Employment,
on the other hand, is establishedby contract. It involves performingsuch duties as are prescribedby the employingagent. The llemployee'l is often subject to dischargeat 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$eenof 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.clesrlynot an "office?but is a mere employment. Hence Section 40 is not applicable.

The secondprohibition laced in our Constitution is Section 33 of Article 1%

. tions of that section read: The pertinentpor-

"The accountingofficers 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 districtsdo not enjoy certain privilegesand immunitiesenjoyed 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 generallyheld that they are state agencies, erected and employed for the purpose of administeringthe 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 SchoolDistrict'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 assistantswithout consultinganyone; and he, not the School Board, would have been responsiblefor his own and the torts of-,such assi+antsr ._'

. An "independentcontractornis defined in POE;: 2 of the Restatement of the Law of Agency as

*An independent contractoris a person who contra& with another to do somethingfor him but who is not controlledby the other nor subject to the other's right to controlwith respect to his physical conduct in the performanceof the undertaking."

In distinguishingan independentcontractor

. from an employeeor servant, 2 American Jurisprudence 17 says, "An independentcontractormay be distinguished from an agent in that he is a person who contracts with another to do something for him, but who is not controlledor subject to the control of the other in the performanceof such contract,but only as to the result. A principal, on the other hand, has the right to control the conduct of an agentwith respect to matters intrusted to him. The theory which in many cases is adopted to differentiate between an agent and an independentcontractor is that one is to be regardedas an agent or an independentcontractor accordingto whether he is subject to, or free from,Hon. c. H. Cavness - Page 6, V-303

3%

the control of the employerwith respect to the details of the work.

. . .v'

Justice Shar in IndustrialIndemnit Ex- ;ham?~ =;:&I;! Q=~~531, 160 @ 7ja5, : "The general rule relating to independentcontractors rests upon certain retognised tests; althoughsuch tests are not necessarily concurrent

with each other,nor is each test in itself controlling. Such tests are: (1) The independentnature of his business; (2) his obligationto furnish necessary tools, supplies,and material to performthe job; (3)his right to controlthe 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 foregoingare consideredthe 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 positionwas that of an independent condependent ment with of honor, tion 33. The questionthen remains as to whether an incontractor

who enters on a contractualagreea school districtholds 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 holdingthat positionhe could either (1) receive regular pay as an em loyee for doin accounting work, or (2

P of a state agency

as an in ependent

2 perform such services

contractor. In an able opinionby Mr. D. A. Simmons, later president of both the Texas Bar Association and the AmericanBar Association,this office said,

t,

. . . . Therefore,we can .advisewithout hesitancy that being a member of the State Board of PublicAccountancyunder 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 independentcontractorand not as anHon. C. H. Cavness - Page 7, V-303 17 \ t

agent, officer or appointeeof the St&e, we have found no provisionof the Constitution or law which would preventyou from accepting such a contractwhile 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 situationpresentedby Mr. Gubbeis. It was followed in an opinionby First AssistantAttorney GeneralScott Gaines in 1937, wherein it was held that the County Auditor of Harris County could take independent contractsto audit the books of independent school districtswhere such serviceswere 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'inthe

The citv made a contract to emolov an expert on traffic controi at a.large sala recommendationson traffic planning. The'E ti, iakz, omptroller objected to the contractbecause, among other reasons, it failed to put the plannerunder -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 contractoris not to be placed in any osition provided for by the charter. b

He is to e engagedunder a contract to do a specific job~andall of the assistantswhich he will employ from the typist in his'officeto 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.referenceto the classified service, but are to be employees of the engineer whose contract requiresthat he supply the city with estimates plans programs and reports, such as wiil enable the municipality to advance the publicwelfare by the improvementof conditionswith respect toHon. C. H. Cavness - Page 8, V-303



## 3.8

which his serviceswill be rendered.

1).

. . ,~Because

the supervisorsin the

. exercise of their discretionprefer to keep check upon the details of the cost of the work to be done by the contractorrather than to contractfor the survey to be done 

### for a lump sum does not alter the fact that the contractoris employed as an independent contractorto do a specific job and to get for himself a definiteprofit."

It is therefore,our opinion that Sections 33 and 40 of Artic

ie 16 of our Constitutiondo not prohibit Mr. Gubbels from taking work as an independentcontractor while em loyed by the State Highway Department. Xbether Mr. iz

ubbels fully performedhis duties to the HighwayDepartment is a matter for the officialsin charges of that Departmentto decide, and for which they are responsible. Under Section 14(c) of Senate Bill 317, Acts 49th Legislature,p. 945 (StateDepartmental AppropriationBill), it is provided that no salary shall be paid any personunless such person actuallydischargeshis assigned duties.

If Mr. Gubbels fully erformedall the duties assigned to him by the Highway 5epartmentduring the hours requiredby the DepartmentalAppropriation Bill, it was not a violationof 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! e did not dischargethe duties and work during the hours required, he is entitledto no pay for such period of time under the provisionsof S. B. 317, supra.

This opinion covers only the questionof the legality of Mr. Gubbels' contractand paymentas an in; dependentcontractor by the School Board while he was acting and receivingpay as an employee of the Highway Department. The fact that the law does not prohibit such an arrangementshould not be consideredas an approval thereof as a matter of public policy. Neither should this opinionbe consideredan approvalof the actions of either the School Board or the HighwayDepartment as a matter of public policy. It is difficult to believe that State employees can engage in outside work of such magnitudewithout 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 Departmentand the School Board to determine their respectivepolicies concerning the matters involved in this case.

. - SUNMARY

An employee of the State Highway Department is not prohibitedby 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 Departmenthours, where there is no incompatibility in such work and no failure to.dischargeState duties. Such practice.isquestionedas 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 respectivepolicies in such matters. (Construing

Texas Constitution, Art. 

### 16, Sections33 and 

### 40.)

Yours very truly,

ATTORREY GENERAL OF TEXAS


# W
Joe R. Greenhill ExecutiveAssistant



### APPROVED:

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