4'a~Arrrom~~ GENERAL OF-TEXAS

Honorable T. 0. Walton, President Agricultural and Mechanical College of Texas College Station, Texas
Dear Sir: OpinionNo. O-3779 Re: Paymentby A. Army officers College. c

& M. College of employedat the

that at present Your letter of July 

### 17, 1941,states you have onduty at the Collegeapproximately thirty United StatesArmy officers, In the following categories:

1. Officers of
2. OffFcers of called to active duty. the regularArmy on the active lfst. the regularArmy on the retired list,



### 3. Officers of the reserve corps called to active duty for periods of one year.

From your letter, it appears that theseArmy officers on active duty are detailed for R. 0. T. C. duty at the College, and are employedby the College to servethe positions of Commandant,Assistant Commandant,and tactlcal officers, for the control and exercise of discipline of the cadet corps, as well as non-military students.

Your questlon. as we understand It, is whether you may pay to theseArmy officers,who have accepted and who hold and exercise the positions of Commandant,Assistant Commandant, and tactlcal officers, the salaryappropriatedby the Legislature for suchpositions.

Your inquiry involves the provisions of the Texas Constitution, to-wit,Article 

### 16,Section 

### 33,and Article 

### 16, Section 40.

Article 

### 16, Section 

### 33,of the Constitution,provldes as follows:

"Theaccounting officers of this State shall neither draw nor pay a warrant upon the treasury in favor of any person, for salary or compensationHonorable T. 0. Walton, President - page 2 o-3779

as agent, officer or appointee,who holds at the same time any other office, or position of honor, trust or profit, under this State or the United States, except as prescribed in this Constitution. Provided, that this restriction as to the drawing and paying ofwarrants upon the treasury shall not apply to officers of the National Guard of Texas, theNational Guard Reserve, the OfficersReserve Corps of the Unlted States, nor to enlistedmen of theNational Guard, the National Guard Reserve and the OrganizedReserves of the United States. [ Sec. 33, Art. 16, adopted electionNovember 2, 1926; proclamation January 20, 1927.)" Article 16, Section 40, provides:
'NOperson shall hold or exercise,at the same time,more than one civil office of emolument,ex-' cept that of justiceof peace, county commissioner, notary public and postmaster, officer of the National Guard, the NationalGuard Reserve, and the Officers Reserve Corps of the United States, and enlistedmen of theNational Guard, the National Guard Reserve, and the organizedReserves of the United States, unless otherwise speciallyprovided herein. Provided, that nothing in this Constitution shallbe construed to prohibit an officer, or enlistedman of the NationalGuard, and the NationalGuard Reserve, or an officer in the OfficersReserve Corps of the United States, or an enlistedman in the Organized Reserves of the United States from holding in conjunctionwith such office any other office or position of honor, trust or profit, under this State or the' United States. (AdoptedelectionNovember 2, 1926; proclamation January 20, 1927.)"
In the case of Carpenterv. Sheppard, 145 S. W. (2d) 562, our Supreme Court held that an officer of the Texas National Guard ordered into the active military service of the United States and engaged as an officer in such service,remained "so far as Texas is concerned",as respects the ap-~ plication of the provlsos to Article 16, Sections 33 and 40, an officer in the Texas National Guard. In otherwords, the Court held that, as respects the application of Article 16, Sections 33 and 40, the officer is classifiedaccording to the status of origin -- that the provisowas intendedby the people to apply to theNational Guard officer even after he acquired the status of an officer in the activemilitary service of the United States, sincehe was ordered Into that serviceby virtue of his original status as NatlonalGuard officer.Honorable T. 0. Walton, President - page 3 o-3779

This holding cannot logically or reasonablybe restricted to National Guardsmen, but must also be applied to persons in the other exempted classifications. Hence, for Instance, a reserve offlcerora retired Army officer, ordered as such into active service, still occupies, so far as the application of the exemptlons.contalnedin the provfsos ,to Article 16, Sections 33 and 40, are concerned, his status of origin -- to-wit, the status of reserve officer or retired Army officer,

From what has been said, it follows that Article 16, Sections 33 and 40, by virtue of the p~ovlsos, do not prohibit retired Army officersand officers of the reserve corps, ordered to active duty, from holding a civil officeunder this State, or from receiving compensation from the State for servicesrendered as a civil officer,agent, or employee, of the State,while in such active military service of the United States, The offlcer of the regularArmy, on the active list,

is not within the provisos to Article 16, Sectfons ;y:zF40 n He Isnot in the activemilitary serviceby reason of an order operatingupon him as a member of one of the exempted classifications. Consequently,the officer of the regular Army on the active list employedby the College,hy virtue of the provisions of Article 1.6, Section 33, cannot be pald the compensationattaching to his employmentby the College for the period of time that he remains an officer of the regular Army on the active list.

Summarizing the above, we advise that offloers of the regular Army on the active listmay not be paid from your appropriations for servicerendered as offfcers,agents, or employees of A. & M, College. Officers of the reserve corps and retired Army officers, ordered as such to active duty under the United States,may be paid for servicesrendered as officers, agents, or employees of the College, though such servicesare rendered while they are in active service under the United States -- provided, of course, that appropriationsto pay for the servicesrendered are available to you for expenditure.

Your letter refers to an opinionwhich you statewas written by this department on April 5, 1941. This opinion, according to the statementcontained inyour letter, held that under the provisions of the Constitution of the State of Texas, various agencies and departments of the State government could not supplement salaries of Army officers that might be assigned to duty in connectionwith departments of the State government.

The question IS not one of supplementingsalariesreceived by Army officers from the Federal Government, but oneBonorable T. 0.Walton, President - page 4 o-3779

of authority to pay, under the provisions ofArticle 16; Section 33, of the Constitution,onewho serves for compensation as an officer, agent, or employee of the Statewhile at the same time holding an office or position of honor, trust, or proflt under the Federal government.

A search of the records of this department does not reveal thatwe wrote on April 5, 1941 and opinion so broadly phrased as Indicated inyour letter. The opinion 'to which you refer is apparentlyNo. O-3335, copy ofwhich is enclosedherewith for your information. You will observe that this opinion, in the last two sentencesof the last paragraph, states:

"Yourquestion, as we understand it,relates to men who are not In theNational Guard nor any of the other exceptions listed in the above Constitutional provision. Hence we are compelled to answer your question in the negative."
Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/RichardW. Fairchild RichardW. Fairchild

Asslstant
RWF:fs:wc Enclosure

APPROVED AUG. 9, 1941 s/GroverSellers FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion Committeeby REKChairman