# The Attorney General ofTexas December 22, 1978 JOHN L. HILL AttorneyGeneral
Honorable Bill Clayton Speaker ofthe 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: Youask: 1. May a member of the legislature be employed by the legislative branch of the federal government and receive asalary? 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 ofa federal contract payment orgrant? 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 orposition of profit under this State, or the United States, except as a notary public if qualified bylaw. Webelieve it isclear that a legislator may not be a salaried employee ofabranch ofthe United States government. Your other two questions involve legislators who directly or indirectly contract with the federal government. There isno specific prohibition inthe constitution against a legislator contracting with the federal government.

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

Attorney General Opinion H-698 (19751. The only issue would be whether the language ofarticle 18,section 40relating to “position ofprofit” 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, 441P.2d 27 (Alaska 1988). The California Supreme Court determined that a“position” connoted an employment to render service at asalary paid periodically and did not include an independent contractor. Kennedy v.Ross, 170P.2d 904, 908-7 (Calif. 1948). Afederal district court also used the employeeindependent contractor distinction. Karas v. Klein, 70F.Supp. 469(D.Minn. 1947). Several Attorney General opinions have indicated that an independent contractor does not occupy an office orposition. 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 ifquestions 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 isto the effect that heis 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 ofthe case. Verytruly yours,

Attorney General ofTexas

p. 5134,

Honorable Bill Clayton - Page 3 (H-1304)

Opinion Committee jsn

p. 5135