4'a~Arrrom~~ GENERAL 

OF-TEXAS 

Honorable T. 0. Walton, President 

Agricultural and Mechanical College of Texas 

College Station, Texas 

Dear Sir: Opinion No. O-3779 

Re: Payment by A. 

Army officers 

College. 

c 

& M. College of 

employed at the 

Your letter of July 17, 1941, states that at present 

you have on duty at the College approximately thirty United 

States Army officers, In the following categories: 

1. Officers of 

2. OffFcers of 

called to active duty. 

the regular Army on the active lfst. 

the regular Army 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 these Army officers 

on active duty are detailed for R. 0. T. C. duty at the College, and are employed by the College to serve the 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 these Army officers, who have accepted and who hold and 

exercise the positions of Commandant, Assistant Commandant, 

and tactlcal officers, the salary appropriated by the Legislature for such positions. 

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: 

"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 
Honorable 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 of warrants upon the treasury shall 

not apply to officers of the National Guard of Texas, 

the National Guard Reserve, the Officers Reserve 

Corps of the Unlted States, nor to enlisted men of 

the National Guard, the National Guard Reserve and 

the OrganizedReserves of the United States. [ Sec. 

33, Art. 16, adopted election November 2, 1926; 

proclamation January 20, 1927.)" 

Article 16, Section 40, provides: 

'NO person shall hold or exercise, at the same 

time, more than one civil office of emolument, ex-' 

cept that of justice of peace, county commissioner, 

notary public and postmaster, officer of the National 

Guard, the National Guard Reserve, and the Officers 

Reserve Corps of the United States, and enlisted men 

of the National Guard, the National Guard Reserve, 

and the organized Reserves of the United States, 

unless otherwise specially provided herein. Provided, that nothing in this Constitution shall be 

construed to prohibit an officer, or enlisted man 

of the National Guard, and the National Guard Reserve, 

or an officer in the Officers Reserve Corps of the 

United States, or an enlisted man in the Organized 

Reserves of the United States from holding in conjunction with such office any other office or position 

of honor, trust or profit, under this State or the' 

United States. (Adopted election November 2, 1926; 

proclamation January 20, 1927.)" 

In the case of Carpenter v. 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 other words, the 

Court held that, as respects the application of Article 16, 

Sections 33 and 40, the officer is classified according to 

the status of origin -- that the proviso was intended by the 

people to apply to the National Guard officer even after he 

acquired the status of an officer in the active military 

service of the United States, since he was ordered Into that 

service by virtue of his original status as Natlonal Guard 

officer. 
Honorable T. 0. Walton, President - page 3 o-3779 

This holding cannot logically or reasonably be restricted to National Guardsmen, but must also be applied to 

persons in the other exempted classifications. Hence, for 

Instance, a reserve offlceror a retired Army officer, ordered 

as such into active service, still occupies, so far as the 

application of the exemptlons.contalned in 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 officers and officers of the reserve corps, 

ordered to active duty, from holding a civil office under this 

State, or from receiving compensation from the State for 

services rendered as a civil officer, agent, or employee, of 

the State, while in such active military service of the United 

States, 

The offlcer of the regular Army, on the active list, 

is not within the provisos to Article 16, Sectfons 

;y:zF40 n He Is not in the active military service by reason 

of an order operating upon him as a member of one of the exempted classifications. Consequently, the officer of the regular Army on the active list employed by the College, hy virtue 

of the provisions of Article 1.6, Section 33, cannot be pald 

the compensation attaching to his employment by 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 list may not be paid from your appropriations for service rendered 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 services rendered as officers, 

agents, or employees of the College, though such services are 

rendered while they are in active service under the United 

States -- provided, of course, that appropriations to pay for 

the services rendered are available to you for expenditure. 

Your letter refers to an opinion which you state was 

written by this department on April 5, 1941. This opinion, 

according to the statement contained in your 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 connection with departments of the State government. 

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

of authority to pay, under the provisions of Article 16; Section 33, of the Constitution, one who serves for compensation 

as an officer, agent, or employee of the State while 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 that we wrote on April 5, 1941 and opinion so broadly 

phrased as Indicated in your letter. The opinion 'to which you 

refer is apparently No. O-3335, copy of which is enclosed herewith for your information. You will observe that this opinion, 

in the last two sentences of the last paragraph, states: 

"Your question, as we understand it, relates to 

men who are not In the National 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/Richard W. Fairchild 

Richard W. Fairchild 

Asslstant 

RWF:fs:wc 

Enclosure 

APPROVED AUG. 9, 1941 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee by REKChairman