Honorable J. C. Mlnkert OpinionNo. o-6458

County.Attormey Re: Ellglblllty of a member Brazes County of the 49th Legislature

, Bryan, Texas for appointmentby State Board forVocational II Educationas Executive Officer under the provisions of Senate Bill No. Dear Sir: 120, 49th Legislature.

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

“Will you kindly informme whether or not a member of the 49th Legislature is eligible for appointmentby 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'spart or so:much thereof as Is necessary for the State,Boardof Education .: to employ an executive officer:&

"The title of the Board shouldhave been 'StateBoard ofVocational Filucatlont~lnstead of 'StateBoard 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 governmentmatching appropriationbill and all employeesand'personnelare merely nominated by the State Board of Vocational Educationand the appointment ismade by the Federal Commissionerof Education at Washington, D. C. The amount appro- ,priatedIn the above bill Ismerely 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 shallhave been created, or the emolument from which may have been increasedduring such term

. . ."

An examinationof Senate Bill No. 120 shows that It Is an appropriationact 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 shouldbe so construed, It would probably be void under the familiar requirement of the Constitution that no bill shall containmore than one subjectwhich shallbe mentioned in its title.

The bill itself Is as follows:

"Section 1. For the purpose of promoting public school Interestsand 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 somuch thereof as may be necessary for the schoolyear endingAugust 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 endingAugust 31, 1947, to be allotted and expendedby the State Board ofVcrstiona.1Educa-, tion.

"Section 2. The funds appropriated in this Act shallbe expended in accordance with all Federal laws and regulationsgoverningvocational education,providing that in schoolswhere equalization funds are received,vocational agriculture, home economics,and trades and industriesand dlstributive education shall comply with such regulations as set forth in the equalizationbill.
"Section 3. Provided that vocational agrl-"' culture,home economicsand trades and Industries and distributive education teachersmay be paid for twelve (12)months where .thesuperintendent of the school in which they are employedhas certified to the State Board forVocational 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 forVocational Education, through Its Executive Officer, is hereby authorized to receive and disburse In accordance .wlthplans acceptable to the responsibleFederal agency, all Federalmoneys 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 forVocational Education.

"Section 5. There is hereby allocated and set aside the followingamounts for the purpose indicatedbelow:
"VocationalAgriculture: Four Hundred Ten Thousand Four Hundred Twentyfive Dollars

. . . . . . . . $410,425.00

"VocationalHome 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

"DistributiveEducation: Fifty-fiveThousand Dollars

. . . . . . . e
. . 55,ooo.oo
"VocationalRehabilitation: One Hundred Fifty-four Thousand Three Hundred Seventy-four Dollars

. . . . . . 154,374.oo
"Rehabilitationfor Crippled children to be expendedby the Department of Health: One Hundred Sixty-twoThousand Five Hundred Dollars

. . . . . . 162,500.00

"Providedunexpendedbalances remaining in the fundsherein appropriated for vocational services may be re-allocatedwith 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 StateAgencies
are hereby authorized tomake application for and accept any glfts,,grants, or allotments from the United Statesgovernment to be used on State Cooperativeand other Federal projectsand programs In Texas, Including constructionof 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 authorizedby the Federal Qovernment,and subject to the 15mltatlonsplaced in this Act. There is hereby appropriated the sum of Two Thousand Five Hundred Dollars ($2,5OO.OO)state's part.or somuch thereof as Is necessary for the State Board forVocational Education to employ
an executive officer;and there is hereby appropriated the sum of One Thousand Four Hundred Fifty Dollars ($1,450.00)state'spart for the State Board forVocational Education to pay director, Distributive Education.

“section 6, All laws and parts of law8 In conflictherewith are hereby expresslyrepealed.
"Section 7. The fact that many schools In this state are desirous of having the services of vocational teachersmentioned in this Act, and the further fact that If the schools receive such services it Is absolutelynecessary that this appropriationbe passed, create an emergencyand an Imperativepublic necessity that the Constitutional Rule requiringbills 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 appointmentmentioned 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 employedby the State Board forVocational Education. Horeover the Federal funds appropriatedand allocated to the Stateunder the co-operative systemare 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 Constitutioncontaining the following pertinent language: "The accounting officers of this State shallneither draw **nor** pay a warrantupon 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 Ineligibleto the appointment
as executiveofficer by the Board nevertheless,as such employeehe 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 forbiddenwhile he at the same time holds the office of Representative In the Legislature.

This departmentheld In an opinion dated September 22, 1913, writtenby the late Chief Justice.of,the Supreme Court, then First Assistant Attorney General C. M. Cureton: "Therefore, shouldMr. 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 couldnot draw pay for either such office or such position." **1912-1914,** page 873) (SeeOpinionsAttorney General

Since the position of executive officer Is not an "office of emolument," the acceptanceby the member of the position would not operate as a constructivereslgnation by the Representativeunder Section 40 of Article XVI of the Constitution. In other words as a matter of pure eligibilityhe might hold both the office and the position of employmentbut he would be forbiddenby Section 33 of the Constitutionto receive compensationfor 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. (Copyherewith)

Of course, so far as the question of payment Is concerned thatmatter would be eliminated in the event the member should resign and his successorbe elected and qualified. Such Intention to so resign was mentioned In correspondenceaccompanyingyour request.Honorable J. c). Minkert, page 6 (O-6458)

We trust that this opinion satisfactorilyanswers your inquiry,

Yours very truly,

ATTORNEY OENERAL OF TEXAS

Ooie Speer Assistant
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