July 18, 1947 

'Hon. William L. Kerr; President 

Board ofRegents 

State Teachers' Colle 

First Eatiolipl Baqk 

Midland, Texas Opinion No. V-308 

'Re: 

R-655 

Eligibility of a State 

Senator'to hold the 

positi~on of wExecutlve Secretary" of.the 

Board.of Regents, 

State-Teachers.:Colleges; such office 

being created during 

his term of:~off$ce.- 

:.~. . : 

: s;;.: \,:: ) ~_ 

;, I: ;,.‘I~.::,; ':. 

_ .i ,~..a.:- ‘;~~ .‘ro~,;~~tte~lof.~~~~ I(), 1947, st&te&~,*ht the 

recent;Legisi,~ture.,~pr~v~~ed~for,the appointsient, ofan 

Executive Seci&&y:tio@etie the Board of':Regents. of

the'St,ate.TeB,~hers CoUgee of Texas. You-:state.-that 

Se&&or-B;,: L,;",Profferb ~~&'~a'mernber of that &egSslature, 

.~wh%ch:cz%ated, this positi'on., '..You'wish tooknow whether 

.SenPtor..ProffBq~~may lwfully:be.appointed to the above . . 
. 

lion. William L. Kerr - Page 2 

. 

V-308 

Similarly, Article 16, SectAm 40, provide8 

in part: 

"No person shall hold or exercise! at 

the same time, mor8 than one sivil office 

of emolument . . .* 

Rowever, the position of 'Executive Secre- 

.tary" to.the Board of Regents of the State ‘$zachers 

Coo;efeafgi0 not a #y&&v. It is an employ- 

*officer exerc see some governmental funetion; he is Invested with some portion of the sovoreignty.+ A public office is a right' authority, and 

duty created and.conferred by law. 

is not transient.. occasional, or 

f 

I 

&he tenure of which 

naidental, Among 

the usual triter a given for determIning whether an 

employment Isa public. office or not, ars the requirements of an effieial oath and bond; that the powers 

are 

f? 

anted and conferred by law and not by contract. 

,The .officerw $5 generally answerable for misfeasance 

in' office, and is responsible forthe acts of his wemtdes as are prescribed by the employing agent. The 

?employeew is often subject to discharge at the wilh 

-of the wofficerv to whom he isresponsible. These 

matters are fully discussed in Lo d v. _comO, 137 S.W. 

880, writ.refusedji;&nox v1 -Ye- o nson, 141 S.W. (2d) 

8,.writ refused;,Meecbcuq,~ Publmcers, Oh? 1; 

l+Z Am. JUT.,, Public Officers, Sections 2-16; 34 Tax. 

Jur*, Public Offleers Sections 2-4; and in Annotations 53 A.L,Rt 595, 43 A.L,R. 333, 140 A.L.R. 1076. 

T$&&e5~. Article 3, 8ecti~en It, and Article 161.Section 40 are not ap Senator 

Preffer'.maybe appojabed to 

llcable;.and 

t K me now poritien~. 

Ho~ver~ titic&e 16, Section 33 provides: 

eThr'aeca 

State shall *.tlol*\'.drau E" mer pa9 a warBing~offieers l f &h&e 

rant upon the treasury in favor of any .__.. 

person, for salary or. aompensation~a6 

agent, officer, of.appo+ntee, who &Ids 

. 'at the same tame any other off&M or 

position of.hoRcir:.~truet or profit Md+r 

'this State l 4 .~e. 5

‘_ 

‘Z.’ 

, 

:, 

*: 
Hon. William L. Kerr - Page 3 V-308 

A State Senator is an officer of the State. 

That office is one of honor, trust, and profit. The 

Executive Secretary is an agent or appointee of the 

State; and his position is one of honor, trust, and 

profit. Hence under Sectien 33, the Accounting Officer of this &ate could neither draw nor pay a warrant on the treasury in favor of Senator Proffer for 

either place. While holding both places, he could be 

paid neither as Senator nor as Executive Secretary. 

In order to be paid as Executive Secretary, he would 

have to resign the office of State Senator. 

A similar result was reached in Attorney 

General's Opinion 0-6458, a copy of which is herewith 

enclosed.' It was there held that a member of the 49th 

Legislature could be appointed Executive Officer of 

the State Board of Vocational Education, but that he 

could not be paid from the Treasury thereafter until 

he resigned from the Legislature. 

SUMMARY 

Although a member ef the Legislature 

is ineligible to accept an woffice* created 

at the session of whioh he was a member, he 

may become an wemployee" of the State (as 

distinguished from an Rofficer") in a place 

created by such ~session. 

cepts such emplo. 

Hewever, if he acfrom the State 

Jyw he may receive no pay 

Art. 16, Sec. 33. 

ile holding both places. 

He may receive pay for 

such employment if he resigns his office in 

the Legislature. 

.' 

Yours very truly, 

JRG:erc 

mnimirgp 

Joe R. Greenhill 

Executive Assistant