Hon. Charles R. Barden

Executive Secretary Texas Air Control Board 1100West 49th St. Austin, Texas 78756

Dear Mr. Barden:' OpinionNo. M-193

Re: Construction of the 1967 Amendment to Section 33 of Article XVI of the Constitution of Texas.

Your request for an opinion on the above subject matter asks the following questions:

"(1) May the accountingofficers of this State draw or pay a warrant upon the State Treasury in favor of an appointedmember of the Texas Air Control Board forper diem and travel and other necessary expenseswhile in theperformance of official duty for the Texas Air Control Board, if at the same time the member is serving on the planning and advisory group of the National Center for Air Pollution Control, as explained above, forwhich service he receives from the Federal government a consulting fee and payment of travel and other necessary expenses incurred in his work with the NCAPC planning and advisory group? ,I

. . .

, "(5) May the accountingofficers of this State draw or pay a warrant upon the State Treasury in favor of an appointed member of the Texas Air ControlBoard for per diem and travel and othernecessary expenses while in the performanceof official duty for the Texas Air Control Board, if at the same time themember is serving on the faculty of a Statesupported university in,aprogramwhich is devoted in part to the scientific and engineering aspects ofvarious environmental health problems, including

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air pollution, as explained above, for which service he receives from the university a salary,per diem,- or other remuneration forhis time, and payment of travel and other necessary expenses incurred in his work for the university?
91 II

. . . Prior to the 1967 amendment, Section 33 of Article XVI of the Constitutionof Texas provided in part:

"TheAccounting Officers of thisState shall neither draw nor pay a warrant upon the Treasury in favor, of anyperson for salary or compensationas .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 prescribed in this Constitution."

The 1967 amendment to Section 33 of Article XVI added the followingprovision:

"It is furtherprovided, until September 1, 1969, and thereafteronly if authorizedby the Legislatureby general law under such restrictionsand limita-. tions as the Legislaturemay prescribe, that a non-elective State officer or employee may hold other non-elective offices or positions of honor, trust or profit under this State or theUnited States, if the other offices or posi- .tionsare of benefit to the State of Texas or are requiredby State or federal law, and there is no conflictwith the original office or .positionfor which he receives salary or compensation. No member of theLegislature of this State may hold any other office or position of profit under this state, 01 theUnited States."

to be accomplis: 136'S.W.2d 808

In construing a constitutionalamendment the courts will look to the evils intended to be remedied and,the good

hed. Markowsky v. Newman, 134 Tex. 44D,. (1940);Hamiltori

v. Davis, 217 S.W; 431'

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(Tex.Civ.App. 1920,error ref.). Furthermore,different sections, amendmentsor provisions of the Constitutionwhich relate to the same subjectmatter should be construedtogether and considered in light of each other. Purcell v. Ia:;:, 314 S.W.Zd 283 (1958);CollingsworthCounty v.

40 S.W.Zd 13 (1931). In CollingsworthCounty v. Aflred; supra, the court stated in 40 S.N.Zd 15:

"TheConstitutionmust be read as a whole, and all amendments theretomust be considered as if every part had been adopted at the same time and as one instrument, and effectmust be given to each part of each clause, explained and qualified by every other part. Gilbert v. Kobbe, 70 N.Y. 361. Different sections, amendments, or provisions of a Constitution which relate to the same subject-mattershould be construed together and considered in the light of each other. Dullam v. Willson, 53Mich. 392, 19 N.M. 112, 51 Am.Rep. 128; State v. Astoria, 79 Or. 1, 154 P. 399."

InMarkowsky v. Newman, supra, the court stated:

"Anotherrule of construction is generally, ,,,

itmay be said, that in determining themeaning, intent and purpose of a constitutionalprovision the historI of the times out of which it grew and to which it may be rationally supposed to have direct relationship, the evils intended to be remedied and the good to be accomplished,are proper subjects of inquiry. Travelers Insurance Company v. Marshall, 76 S.W.Zd 1007."
Therefore, the amendment to Section 33 of ArticleXVI should be considered in light of not only the prohibitionpreviously contained in Section 33, but also theprohibition contained in Sections 12 and 40 of Article XVI relating to the same subjectmatter. Section 12 of ArticleXVI of the Constitution of Texasprovides:

"NOmember of Congress, nor personholding or exercising any office of profitor trust, under the United States, oreeither of them,or under any foreignpower, shall be eligibleas. c 

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’ Hon. Charles R. Barden,page 4, (M-193)

a member of the Legislature, or hold or exercise any office of profit or trust under this State."
Section 40 of Article XVI of the Constitution of Texas provides in part:

"Noperson shallhold or exercise, at the same time,more than one Civil Office of emolument,

. . . .)I
Thus, while Sections 12, tain dual office holding in Texas, 33 and 40prohibit certhe 1967 amendment to Section ,33of Article XVI specifically authorized the holding of more than one office or position of honor, trust or profit under.this State or the United States. While the amendment has not been construed by the courts of this State, we are of the opinion that the rules of construction quoted above shouldbe applied.' Applying the foregoing. it is noted that the amendment specificallyauthorizes until September 1, 1969, a non-elective state officer
or employee to hold other non-elective officesor positions of honor, trust or profit under.this State or the United States if such'otheroffices or positions are of benefit to the State and there is no conflictwith the original office or position; After September 1, 1969, such nonelective state officer or employee may hold other offices
or positions only if authorizedby the legislatureby general law under such restrictions and limitationsas the legislaturemay prescribe.

We find no conflict in the duties of a member of the Texas Air Control Board and a member of theplanning and advisory group of the National Center forAir Pollution Control as outlined in your letter, nor do we find any conflict in the duties of themembers of the Texas Air Control Board and thoseduties of the facultyof a statesupported university in a program outlined inyour request. Therefore, you are advised that the Comptroller of Public Accounts may issuewarrants upon the State treasury in favor of an appointedmember of the Texas Air Control Board for per diem and travel and other necessary expenseswhile in the performance of official duties for the TexasAir Control Board even though suchmember is servingon theplanning and advisorygroup.of the National Center forAir Pollution Control, or is serving as: a facultymember in a statesupported university.Furthermore, neither Sections 12, 33 or 40 prohibit amember of the Texas Air ControlBoard



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Hon. Charles S. Barden,page 5, (M-193)

from serving either on theplanning and advisorygroup of the National Center forAir PollutionControl or as a member of the faculty of a state-supporteduniversity.

I!e have not quotedyour remainingquestions as they were predicated upon a negative answer to questions
no. 1 and no. 5.

SUMMARY -------

The 1967 amendment to Section 33 of ArticleXVI of the Constitutionof Texas until September 1, 1969, specificallypermits a non-elective state officer or employee to hold other non-elective offices or positions of honor, trust or profit under this State or the United States. Neither Sections 12, 33 or 40 of Article XVI now prohibits a member of the Texas Air Control Board from serving on a advisorygroup of the NationalCenter forAir PollutionControl or as a faculty member of a state-supporteduniversity.
V* truly yours,

A@orney General of Texas Prepared by John Reeves Assistant Attorney General

APPROVED: .,OPINIONCOMMITTEE
Hawthorne Phillips,Chairman Kerns Taylor, Co-Chairman

W. V. Geppert John Fainter Marietta Payne Jack Sparks

STAFF LEGAL ASSISTANT A. J. CARUBBI, JR.

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