THE ATTORNEY GENERAL 

OF%%XAS 

t:HUAWWHD C. MAHTIN 

.AUSTIN. TEXAR 78711 

November 15, 1971 

Honorable Jinmy Morris Opinion No. M- 997 

Criminal District Attorney 

Navarro County Courthouse Re: Construction of 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 and Aeeietant 

Dear Mr. Morris: Poetuaeter. 

Your recent letter requesting the opinion of this office 

concerning the referenced matter poses the following questions: 

"1. Can a man 8erve a city as Civil Service 

Conmissioner (non-salary office) for the Police 

and Fire Departments and at the earna time serve 

the same city as a member of the Board of Equalization (also a non-salary office)? 

"2. Can a man nerve ae Civil Service Cornmissioner for the Police and Fire Departments and 

at the saxe time be Aesietant Postmaster (a federal 

. office paying a salary)?" 

For purposes of this opinion we assume these offices serve a 

city or town and are non-elective. 

The following provisions 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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Honorable Jimmy Morris, page 2 (M-997) 

"The Accounting Officers of this State shall 

neither draw nor pay a warrant 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 authorized by the Legislature 

by general law under such restrictions and limitations as the Legislature may prescribe, that a nonelective .State officer or employee may 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 required by State or federal law, and 

there is no conflict with the original office or position 

for which he receives salary or compensation . . . n 

Article XVI, Section 33, 

"No person shall hold 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 

specially provided herein." Article XVI, Section 40. 

Pursuant to the authorization contained in the 1967 amendment to Section 33 of Article XVI, supra. the Legielature. in 

1969, enacted Article 6252~?a which p-&ides, in-full, 

follows: 

"Section 1. 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, if his holdins the 

other offices or positions is of benefit to 

the State of Texas or is required by state or 

federal law, and if there is no conflict betwean 

his holding the office or uoaition and his holdas 

inq the oriqinal office or wsition for which 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 employee may accept an offer to serve in other 

nonelective offices or positions of honor, trust, 

or profit, the officer or employee must obtain 

from the governing body, or if there is no governing body, the executive head of the agency. division, 

department, or institution with which he ie aeeociated 

or employed, a finding that the requirements of Section 1 of this Act have been fulfilled. The governing body or executive head shall make an official 

record of the finding and of the compensation to 

be received by 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 governing body or executive head 

shall promulgate rulea 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 

under the State of Texa8. Willi v. Potts, 377 S.W.2d 622 (Tex. 

Sup. 1964); Attorney Qoner8l's Opinion No. 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 that was added to Section 33 by means 

of the 1967 amendment to that section. That proviso specifically 

authorizes the holding, 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 required by law and there is no conflict with the original 

office. 

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. . - 

Honorable Jimmy Morris. page 4 (M-997) 

We are in accord with 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 that Article, and that 

those Sections must. accordinglv. - -- be construed in consonance with 

that amendment, and Article 6252-9a enacted 

Moreover, it has long been established 

Article XVI, prohibiting the holding by one 

one civil office of emolument 

pursuant thereto. 

that Section 40 of 

person of more than 

"applies only to offices of emolument. 

anolument means a pecuniary profit, gain, or 

advantage; hence the same uerson mav 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. (Emphasis added.) 

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 Commissioner and thatof 'member of a Board of 

Equalization, provided the findings and other requirements of 

Section 2 of Article 6252-9a have been met. 

Your second question involves the legality of one's boldinq 

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, forbidding the holder of a federal 

office of profit or trust from holding a State office is also not 

applicable to the,situation set forth in your second question, 

by virtue of the addition of the 1967 proviso to Section 33 of 

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I. . 

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 

findings and other requirements of 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 fall within 

the legally acceptable standard, which has been stated as follows: 

Wffices are incompatible where their duties 

are or may be inconsistent or (In) conflict, but 

not where their duties are wholly unrelated, are in 

no manner inconsistent and 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 interfere with 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 Constitution of Texas, 

one person may, at the same time, hold the 

offices of Civil Service Coanniesioner and 

member of the Board of Equalization of a town 

or city, provided he has complied with the 

requirements of Section 2 of Article 6252-9a, 

Vernon's Civil Statutes. 

(2) Pursuant to Sections 12, 33, and 40 

of Article XVI of the Constitution of 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 Postmaster both in a town or 

city, provided he has complied with the requirements of Section 2 of Article 6252-98, 

Vernon's Civil Statutes. 

Ve H truly yours, 

General of Texas 

Prepared by 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 

Executive Assistant 

NOLA WHITE 

First Assistant 

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