Honorable J. C. Mlnkert Opinion No. o-6458 

County.Attormey Re: Ellglblllty of a member 

Brazes County of the 49th Legislature 

, Bryan, Texas for appointment by State 

Board for Vocational 

II Education as Executive 

Officer under the provisions of Senate Bill No. 

Dear Sir: 120, 49th Legislature. 

We acknowledge receipt of your letter concerning the above subject matter, as follows: 

“Will you kindly inform me whether or not a 

member of the 49th Legislature is eligible for 

appointment by State Board of Vocational Education as Executive Officer under the provisions of 

Senate Bill No. 120, as set out in free conference 

committee1 report shown in House Journal for Tuesday, May 29, 1945, on page 2835, near the botton 

of the first column on said page, where the following language Is used "There is hereby appropriated,the sum of Two Thousand Five Hundred 

Dollars ($2,5OO,OO) state's part or so:much thereof as Is necessary for the State,Board of Education .: 

to employ an executive officer:& 

"The title of the Board should have been 

'State Board of Vocational Filucatlont~lnstead of 

'State Board of Education'. This error was corrected by HCR No. 110, shown in House Journal of 

Wednesday, Nay 30, 1945, at page 2867 and concurred 

by the Senate, shown In Senate Journal for Thursday, 

May 31, 1945, at page 1238. 

"I call attention to the fact that this is 

a Federal government matching appropriation bill 

and all employees and'personnel are merely nominated 

by the State Board of Vocational Education and the 

appointment is made by the Federal Commissioner of 

Education at Washington, D. C. The amount appro- 

,priated In the above bill Is merely the State's 

part of the salary-Bve officer. The 

other portion Is put up by the Federal ffovernment." 
- - 

Honorable J. C. Minkert, page 2 (O-6458) 

You cite Section 18 of Article III of the Constitution as the basis for your inquiry. That Section Insofar 

as pertinent Is as follows: "No Senator or Representative 

shall during the term for which he may be elected, be 

eligible to any civil office for profit under this State, 

which shall have been created, or the emolument from which 

may have been increased during such term . . ." 

An examination of Senate Bill No. 120 shows that 

It Is an appropriation act by title and in substance. 

It does not create any civil office nor does It increase 

the emolument of any civil office within the State. Indeed, if the bill should be so construed, It would probably 

be void under the familiar requirement of the Constitution 

that no bill shall contain more than one subject which 

shall be mentioned in its title. 

The bill itself Is as follows: 

"Section 1. For the purpose of promoting 

public school Interests and matching Federal funds, 

there Is hereby appropriated out of the General 

Revenue Fund One Million Two Hundred Fifty-nine 

Thousand Fifty-five and OO/lOO ($1,259,055.00) 

Dollars, or so much thereof as may be necessary 

for the school year ending August 31, 1946, and 

One Million Two Hundred Fi?ty-nine Thousand Flftyfive and OO/lOO ($1,259,055.00) Dollars, or so 

much thereof, as may be necessary for the school 

year ending August 31, 1947, to be allotted and 

expended by the State Board of Vcrstiona.1 Educa-, 

tion. 

"Section 2. The funds appropriated in this 

Act shall be expended in accordance with all 

Federal laws and regulations governing vocational 

education, providing that in schools where equalization funds are received, vocational agriculture, 

home economics, and trades and industries and dlstributive education shall comply with such regulations as set forth in the equalization bill. 

"Section 3. Provided that vocational agrl-"' 

culture, home economics and trades and Industries 

and distributive education teachers may be paid 

for twelve (12) months where .the superintendent 

of the school in which they are employed has certified to the State Board for Vocational Education 

that such teacher Is actually engaged in teaching 

this work twelve (12) months. 
Honorable J. C. Mlnkert, page 3 (0-6458) 

. 

"Section 4. The State Board for Vocational 

Education, through Its Executive Officer, is hereby authorized to receive and disburse In accordance 

.wlth plans acceptable to the responsible Federal 

agency, all Federal moneys that are made available 

to the State of Texas for such purposes as training 

personnel for national defense industries, and for 

such other activities as come under the authority 

of the State Board for Vocational Education. 

"Section 5. There is hereby allocated and 

set aside the following amounts for the purpose 

indicated below: 

"Vocational Agriculture: 

Four Hundred Ten Thousand Four Hundred Twentyfive Dollars . . . . . . . . $410,425.00 

"Vocational Home Economics: 

Three Hundred Twenty-one 

Thousand Seven Hundred 

Fifty-six Dollars . . . . . 321,756.oo 

"Trades and Industries: 

One Hundred Fifty-five 

Thousand Dollars . . . . . . 155,ooo.oo 

"Distributive Education: 

Fifty-five Thousand 

Dollars . . . . . . . e . . 55,ooo.oo 

"Vocational Rehabilitation: 

One Hundred Fifty-four 

Thousand Three Hundred Seventy-four Dollars . . . . . . 154,374.oo 

"Rehabilitation for Crippled 

children to be expended by the 

Department of Health: One Hundred Sixty-two Thousand Five 

Hundred Dollars . . . . . . 162,500.00 

"Provided unexpended balances remaining in 

the funds herein appropriated for vocational services may be re-allocated with the consent of 

each of the directors and with the approval of 

the Executive Office. 
Honorable J. Q, Xlnkert, page 4 (O-6458) 

. 

"The proper officer or offfcers of any State 

Department, bureaus, or divisions of State Agencies 

are hereby authorized to make application for and 

accept any glfts,,grants, or allotments from the 

United States government to be used on State Cooperative and other Federal projects and programs 

In Texas, Including construction of public bulldings, repairs and Improvements. Any of such 

Federal funds as may be deposited In the State 

Treasury are hereby appropriated to the specific 

purpose authorized by the Federal Qovernment, and 

subject to the 15mltatlons placed in this Act. 

There is hereby appropriated the sum of Two 

Thousand Five Hundred Dollars ($2,5OO.OO) state's 

part.or so much thereof as Is necessary for the 

State Board for Vocational Education to employ 

an executive officer; and there is hereby appropriated the sum of One Thousand Four Hundred 

Fifty Dollars ($1,450.00) state's part for the 

State Board for Vocational Education to pay director, Distributive Education. 

“section 6, All laws and parts of law8 In 

conflict herewith are hereby expressly repealed. 

"Section 7. The fact that many schools In 

this state are desirous of having the services of 

vocational teachers mentioned in this Act, and the 

further fact that If the schools receive such services it Is absolutely necessary that this appropriation be passed, create an emergency and an 

Imperative public necessity that the Constitutional 

Rule requiring bills to be read on three several 

days In each House be suspended, and the same is 

hereby suspended, and this Act shall take effect 

and be in force from and after Its passage* and 

It is so enacted. 

Such being the nature of the bill the Constitution 

above quoted would not prevent the appointment mentioned 

by you. Such appointee Is not an "officer", but an employee 

of the Board. 

The executive officer according to the Bill above 

quoted Is to be employed by the State Board for Vocational 

Education. Horeover the Federal funds appropriated and 

allocated to the State under the co-operative system are 

delivered to the State Treasurer and all disbursements 

are made through the ordinary channels for paying out 

State funds to State employees. 
Honorable J. C. Mlnkert, page 5 (O-6458) ” 

Finally, we direct your attention to Section 33, 

Article XVI of the Constitution containing the following 

pertinent language: "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, offiaer or appointee, who holds at the 

same time any other office or position of honor, trust 

or profit, under this State ***. While the member of 

the Legislature is not Ineligible to the appointment 

as executive officer by the Board nevertheless, as such 

employee he does come within the provision of Section 33 

above quoted, that is, he would be holding a position of 

honor, trust and profit under the State, the, emoluments 

of which would be paid out of the State Treasury which 

Is forbidden while he at the same time holds the office 

of Representative In the Legislature. 

This department held In an opinion dated September 

22, 1913, written by the late Chief Justice.of,the Supreme 

Court, then First Assistant Attorney General C. M. Cureton: 

"Therefore, should Mr. Nayes accept the position of Professor of Journalism in the University and at the same 

time hold and exercise the duties of the office of Lieutenant Governor, he could not draw pay for either such 

office or such position." 

1912-1914, page 873) 

(See Opinions Attorney General 

Since the position of executive officer Is not an 

"office of emolument," the acceptance by the member of 

the position would not operate as a constructive reslgnation by the Representative under Section 40 of Article 

XVI of the Constitution. In other words as a matter of 

pure eligibility he might hold both the office and the 

position of employment but he would be forbidden by Section 33 of the Constitution to receive compensation for 

either the office or the employment. See our Opinion 

No. O-6578 involving the holding at the same time of 

the office of member of the Legislature and an employment by a river authority district as an employee. 

(Copy herewith) 

Of course, so far as the question of payment Is 

concerned that matter would be eliminated in the event 

the member should resign and his successor be elected 

and qualified. Such Intention to so resign was mentioned 

In correspondence accompanying your request. 
Honorable J. c). Minkert, page 6 (O-6458) 

We trust that this opinion satisfactorily answers 

your inquiry, 

Yours very truly, 

ATTORNEY OENERAL OF TEXAS 

Ooie Speer 

Assistant 

0S:ljzddt