## THE ATTORNEY GENERAL OF%%XAS

t:HUAWWHD C. MAHTIN .AUSTIN. TEXAR 78711
November 15,1971
Honorable JinmyMorris Opinion **No. M-**  **997** CriminalDistrictAttorney Navarro County Courthouse Re: Constructionof Sec. 12, 33 Coreicana,Texas 75110 and **40** of Art. XVI, Conet. of Texas, **and Art.**  **6252-9a, V.C.S.,**  relating to certain city offices andAeeietant Dear Mr. Morris: Poetuaeter. Your recent letter requesting the opinion of this office concerning the referencedmatter poses the followingquestions:

"1. Can a man 8erve a city as Civil Service Conmissioner (non-salaryoffice) for the Police and **Fire** Departments and at the earna time serve the same city as a member of the Board **of** Equalization (alsoa non-salary office)? "2. Can a man nerve ae Civil Service Cornmissioner for the Police and Fire Departments and at the saxe timebe Aesietant **Postmaster** (afederal

. office paying a salary)?" **For** purposes of this opinion we assume these offices serve a city or town and are non-elective. The followingprovisions of the Constitution of Texas are pertinent to your inquiry:

"No . . .person holding or exercising any office.

of profit or trust, under the United **States, or**  **either** of them, . . . ehall . . . hold or exercine any office **of** profit or trust under thie State." Article XVI, **Section 12.** 

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"TheAccounting Officers of this State shall neither draw nor pay awarrant upon the Treasury in favor of any person for salary or compensation as agent, officer or appointee,who holds at the same time any other office or position of honor. trust, or profit, under this State, except as prescribed in this Constitution . . . It is further provided,
_ . . if authorizedby the **Legislature** by general law under such restrictionsand **limita** tions as the Legislaturemay prescribe, **that a**  **non** elective .Stateofficer or employeemay hold other non-elective offices or positions **of** honor, trust, or profit under this State or the United States, **if** the other offices or positions are of benefit to the State of Texas or are requiredby State or federal law, and there is no conflictwith the original office or position forwhich he receives salary or compensation . . . n **Article** XVI, Section 33, "Noperson shallhold or exercise, at the same time, more than one Civil Office of emolument, exceptthat of Justice of Peace, County Commissioner, Notary Public and Postmaster . . . unless otherwise speciallyprovidedherein." Article XVI, Section 40. Pursuant to the authorization contained in the 1967 amendment to Section 33 of Article XVI, supra. the Legielature. in 1969, enactedArticle 6252~?awhich p-&ides, in-full, follows: "Section1. **A** nonelective state officer or emnlovee **may**hold other nonelective offices **or** positions **of** honor, trust, or nrofit under this **state** or the United States, ifhis holdins the **other** offices or positions is of benefit to the State of Texas or is requiredby state or federal law, and if there is no conflictbetwean his holding **the** office or uoaition andhis hold**as**

inq the oriqinal office or wsition forwhich the officer or employee receives salary or compensation.
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Wonorable Jimmy Morris. page 3 **W-997)**

**“ Sec.**  **2.** Before a nonelective atate officer or employeemay accept an offer to serve in other nonelective offices or positions of honor, trust, or profit, the officer or employeemust obtain from the governingbody, **or if**  there is no governing body, **the executive**  head of the agency. division, department, or institutionwith which he ie aeeociated or employed, a finding that the requirementsof Section 1 of this **Act** have been fulfilled. The governingbody or executive

### head shallmake an official record of the finding and **of the**  compensation to be receivedby the nonelective officer or employee **from** such additional nonelective office **or** position of~honor, truet, or profit including specifically salary,bonus, per diem or **other** type of compensation."Sec. **3.** The governingbody or executive

### head shall 

### promulgaterulea and regulations **necessary** to carry out **the** purposes **of** thim **Act. ”**  (Pmpha8i.s added.) In regard8 to your firat question, it is settled that the municipal poaitionr therein set forth are offices of trust 

### underthe State **of** Texa8. Willi v. Potts, 377 S.W.2d 622 (Tex. **Sup.** 1964); **Attorney** 

### Qoner8l'sOpinionNo.U-842 (1971). This office hae previouely held in **AttOMey** General's Opinien No. M-193 (1968)that **the** prohibitions contained in Section6 12, 33 and 40 of Article XVI **must** all be considered in light of the proviso thatwas added to Section 33by means **of** the 1967 amendment to that section. That proviso specifically authorizes theholding, by a non-elective State officer or employee, **of** more than one office or position of honor, truet, or profit under **the** laws of thim State or **of** the United States, provided the other office is **of** benefit to the State **of** Texas or is requiredby law and there is no conflictwith the original **office.**

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Honorable Jimmy Morris. page 4 **(M-997)**

We are in accordwith the reasoning of Attorney General's Opinion No. M-193 (1968),and the authorities cited therein, and hold that the 1967 amendment to Section 33 of Article XVI, in addition to explicitly amending that Section,had the effect of impliedly amending Sections 12 and 40 of thatArticle, and that those Sectionsmust. accordinglv.be construed in consonancewith - -- that amendment, andArticle 6252-9a enacted Moreover, ithas longbeen established Article XVI, prohibiting the holding by one one civil office of emolument pursuant thereto. that Section 40 of person of more than "appliesonly to offices of emolument. anolumentmeans a pecuniaryprofit, gain, or advantage;hence the **same**uersonmav hold two civil offices where no nay, compensation,or pecuniary gain attaches to one of them,provided they are not incompatible."47 Tex. Jur.2d 41. Public Officers, Section 27. (Emphasisadded.) That Section is, therefore, inapplicable to your inquiry. YOU are therefore advised that, in answer to your first question, one person **may,** at the same time, hold both **the** offices of Civil Service Commissionerand thatof 'memberof a Board of Equalization,provided the findingsand other requirementsof Section 2 of Article 6252-9ahave been met. Your secondquestion involves the legality of one'sboldinq the offices of a city Civil Service Commissioner,which is nonsalaried,and that of Assistant Postmaster,a salaried federal position. We **are of**  the opinion that **the** blanket prohibition of Section 12 of Article XVI, forbiddingthe holder of a federal office of profit or trust fromholding a State office is also not applicable to the,situation set forth in

### your secondquestion, by virtue of the addition of the 1967proviso to Section 33 of

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Honorable Jimmy Morris, page 5 (M-997)

Article XVI and the provisions **of** Article 6252-9a. Therefore,you are further advised that one person may, at the same time,hold both the **office** of Civil Service **Conmissioner** and **the** federal office of Assistant Postmaster,provided the findingsand other requirementsof Section 2 of Article 6252-98 **have** been met. We are also **of the**  opinion **that** none of the offices at issue in this opinion are incompatible,and that they fallwithin **the** legally acceptable standard,which has been stated as follows:

**Wffices** are incompatible**where** their duties **are** or may be inconsistentor (In)conflict,but not **where their**  duties **are** wholly **unrelated, are**  in no manner inconsistentand are never in conflict, and where neither office is accountable or under the dominion of, or subordinate to, the other, or has any right or power to interferewith the other in **the** performance **of** any duty." 47 Tex.Jur.Zd 43, Public Officers, Section 20. SUMMARY (1)Pursuant to Sections 12, 33, and 40 of Article XVI of the Constitutionof Texas, one person may, at the same time, hold the offices of Civil Service Coanniesioner and **member** of the Board of Equalizationof a town or city,provided he has compliedwith the requirementsof Section 2 of Article 6252-9a, Vernon's Civil Statutes. (2)Pursuant to Sections 12, 33, and 40 of Article XVI of the Constitutionof Texas, one person may, at the same time, hold **the** office

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Honorable Jimmy Morris, page 6 W-997)

of Civil Service Cosnniesioner and the office of Assistant Postmasterboth in a town or city,provided he has compliedwith the requirements of Section 2 of Article 6252-98, Vernon's Civil Statutes. Ve H truly yours,

General of Texas Preparedby Austin C. Bray, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Fred E. Davis Lonny Zwiener Linward Shivers Lewis Jones SAM MCDANIEL Staff Legal Assistant ALFRED WALKER ExecutiveAssistant NOLA WHITE FirstAssistant

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