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

Eligibilityof a State Senator'tohold the positi~on

of wExecutlve Secretary"of.the Board.ofRegents,State-Teachers.:Colleges; such office being created during his term of:~off$ce.-

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.‘ro~,;~~tte~lof.~~~~ I(), 1947, st&te&~,*ht the recent;Legisi,~ture.,~pr~v~~ed~for,the appointsient,

of an 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

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

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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 'ExecutiveSecre- .tary" to.the Board of Regents of the State ‘$zachers Coo;efeafgi0

not a #y&&v. **It is**  an employ- *officer exerc see some governmentalfunetion; he is Investedwith some portionof 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 employmentIsa public. office or not, ars the requirements of an effieial oath and bond; that the powers are f? anted and conferredby law and not by contract. ,The .officerw

$5 generallyanswerablefor misfeasance in' office, and is responsibleforthe acts of his wemtdes as are prescribed by the employingagent. The ?employeewis often subject to dischargeat the wilh -of the wofficervto whom he isresponsible. These matters

## are fully discussedin Lo d v. _comO, 137 S.W. 880, writ.refusedji;&nox v1 o nson, 141 S.W. (2d) -Ye- 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.Section40 are not ap Senator Preffer'.maybe

appojabedto llcable;.and

K t me now poritien~. Ho~ver~ titic&e 16, Section 33 provides: eThr'aeca State shall *.tlol*\'.drau mer pa9 a warE" Bing~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 .~e.

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*: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 AccountingOfficer 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** similarresult was reached in Attorney General'sOpinion 0-6458, a copy of which is herewith enclosed.'It was there held that a member of the 49th Legislaturecould be appointedExecutive Officer of the State Board of VocationalEducation,but that he could not be paid from the Treasury thereafteruntil he resigned from the Legislature. SUMMARY Althougha member ef the Legislature is ineligibleto 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 receivepay for such employmentif he resigns his office in the Legislature. .' Yours very truly,

JRG:erc mnimirgp

Joe R. Greenhill ExecutiveAssistant