The Attorney General of Texas 

December 22, 1978 

JOHN L. HILL 

Attorney General 

Honorable Bill Clayton 

Speaker of the House 

State Capitol 

Austin, Texas 787ll 

Opinion No. H-1304 

Re: Whether a member of the 

legislature may be employed by 

the federal government. 

Dear Speaker Clayton: 

You ask: 

1. May a member of the legislature be employed by 

the legislative branch of the federal government and 

receive a salary? 

2. May a member of the legislature be retained on a 

contract for services by the legislative branch of the 

federal government and receive payment for services 

rendered? 

3. May a member of the legislature receive federal 

funds indirectly as the officer of a corporatibn when 

that corporation is the recipient of a federal contract 

payment or grant? 

The last sentence of article 18, section 40 of the Texas Constitution 

reads: 

No member of the Legislature of this State may hold 

any other office or position of profit under this State, 

or the United States, except as a notary public if 

qualified by law. 

We believe it is clear that a legislator may not be a salaried employee 

of a branch of the United States government. 

Your other two questions involve legislators who directly or indirectly 

contract with the federal government. There is no specific prohibition in the 

constitution against a legislator contracting with the federal government. 

P. 5133 
Honorable Bill Clayton - Page 2 (H-1304) 

Attorney General Opinion H-698 (19751. The only issue would be whether the 

language of article 18, section 40 relating to “position of profit” covers contractual 

relationships. 

The Texas courts have not had occasion to construe the “position of profit” 

language in article 18, section 40. A virtually identical phrase in the Alaska 

Constitution was interpreted by the Supreme Court of Alaska. That court 

concluded that a position of profit was a salaried nontemporary employment. 

Begich v. Jefferson, 441 P.2d 27 (Alaska 1988). The California Supreme Court 

determined that a “position” connoted an employment to render service at a salary 

paid periodically and did not include an independent contractor. Kennedy v. Ross, 

170 P.2d 904, 908-7 (Calif. 1948). A federal district court also used the employeeindependent contractor distinction. Karas v. Klein, 70 F. Supp. 469 (D. Minn. 1947). 

Several Attorney General opinions have indicated that an independent contractor 

does not occupy an office or position. II. Letter Advisory No. 87 (1974); Attorney 

General Opinions V-1527 (19511, V-345, &3 (1947). 

Accordingly, it is our opinion that available legal authority is to the effect 

that a legislator is not per se prohibited by the constitution from being an 

independent contractor with the federal government. Of course, any particular 

contract must be analyzed on a case by case basis to determine if questions arise 

under the ethics law, article 6252-94 V.T.C.S., or the common law doctrine of 

incompatibility. , 

SUMMARY 

A legislator may not be employed by the federal government, but available legal authority is to the effect that he is 

not per se prohibited from entering into contracts with the 

federal government. Whether any particular contract 

violates the ethics law or doctrine of incompatibility must 

be determined on a case by case basis, depending on the 

contract and the facts of the case. 

Very truly yours, 

Attorney General of Texas 

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Honorable Bill Clayton - Page 3 (H-1304) 

Opinion Committee 

jsn 

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