-    .




              THE     ATTORNEY          GENERAL
                           OF   TEXAS




    Honorable J. E. McDonald, Commissloner,
    Department of Agriculture
    Austin, Texas
    Dear Mr. McDonald:             Opinion No. o-7230
                                   Re: Whether or hot the aupplemen-
                                        tatioh of salaries by the
                                        Federal Government"'toemploy
                                        certificate seasohal ,inspec-
                                        tors on the Mexican Fruit Fly
                                        Project would vlolate any of
                                        the provisions of Article XVI,
                                        Section 33, of the State
                                        Constitution.
              Your request for an opinion upon the above subject mat-
    ter is as follows:
               "The"Fortg-Ninth Legislature appropriated a num-
         ber of salaries to be used on the'Mexican Fruit Fly
         Project in the Lower Rio Grande Valley of Texas to
         employ certificate inspectors seasonal at $90.00 per
         month‘.'We find it Impossible to employ efficient
         and capable help'as i'snecessary on this project at
         the amount as stated above. The United States'Depart-
         ment of Agriculture is the cooperating agency and is
         Interested in an interstate movement of cit'rusfruit.
         The Federal Government has expressed a willingness to
         supplement these salaries in the amount of $35.00 each,
         which will make a total of $l25.OO to be paid each em-
         ployee.
               "None of these employees holds any other office
         or position of honor, trust, or profit under this State
         or the United States. Each of said employees is under
         the direct and sole supervision of the State Commission-
         er of Agriculture. No other person or Department what-
         soever holds or exercises any jurisdiction or supervi-
         sion over said employees.
               "In view of the foregoing, please advise if the
         supplementation of salaries'by the FecleralGovernment
         as above outlined violates any of the provisions of
         Article 16, Section 33, of'our State Constitution."
                                                          ,   -




Honorable J. E. McDonald, page 2         O-7230


          Under the facts stated by you with respect to the
method of supplementing the sala~riesof the named employees of
your Department, your question should be answered in the negatlve.
          Section 33 of Article XVI of the Constitution referred
to by you, insofar as it concerns a restriction on payment of
compensation, is as follows:
          "The accountingsofficers of this State shall
    neither draw nor pay a warrant upon the Treasury
    in favor of any person, for salary or compensation
    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.
    * * + 4 **'I

          If such supplemental compensation under consideration
is paid'directly by the Federal Government to the State employee
as a State employee performing services helpful alike to the
United States and the State, without creating, or attempting'to
create an office, agency or employment of the United States as
such, then Section 33 has no application.
          We pointed out this distinction in our Opinion No;
0-2388-A, addressed to Honorable Roy C. Loventhal, Chairman,
Livestock Sanitary Commission, a copy of which accompanies this
opinion. In that opinion we said:
         'In response to our inquiry, Mr. C. R. Lan-
   don, District Agent for the United States Depart-
   ment of the Interlop, advised us 'that they (the
   two clerks) each have what is known asAgent ap-
   pointments under the United States Department of
   the Interior, These appointments state the amount
   of salary to be paid from Federal funds and the
   amount to be paid from State funds. The total
   salary is based upon the Federal salary rates for
   the type of work required of these employes.'
         "In the light of this Information, It would
   seem that the Federal Government pays the two
   clerks in consideration for their services render-
   ed pursuant to their individual capacity as agents
   of the United States Department of the Interior,
   and this being done Irrespective of the fact that
   they incidentally occupy at the same time the posi-
   tion of State employees.
         "The money paid these clerks in their capacity
   as a Federal agent springs from a source and travels
Honorable J. E. McDonald, page 3          0-7230


     a channel separate and district from those funds ap-
     propriated by the State Legislature. These f’unas
     never reach the State Treasury. The point of its
     origin and disbursement is the United States Treas-
     ury.


           "The clerks are commissioned agents of the
     United States Department of the Interior, and ac-
     cordingly, hold Federal positions of 'honor, trust,
     or profit', within the meaning of that phrase,
     None of the enumerated exemptions in the above
     quoted constitutional provision (Section 33) em-
     braces this situation.
           "Therefore, under the given facts, our opinion
     is that no provision of the Appropriation Bill would
     prevent the State employee's salary from being sup-
     plemented by Federal Funds; but, Sectlon 33, Article
     16, supra, would prohibit them from receiving any
     salary or compensation for their services rendered
     the State so long as this Federal relationship con-
     tinues."
          We trust that this is a sufficient and satisfactory
answer to your question.
                                Very truly yours
                              ATTORNEY GENERAL OF TEXAS
                                By s/Ocie Speer
                                     Ocie Speer
                                     Assistant
OS al-WC

Enclosure

APPROVED JUN 15, 1946
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
This Opinion Considered And Approved In Limited Conference
