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           Hon. S. .Perry   Brown                    Opinion. No.    WW-64
           Chairman    &I Executive  Director
           Texas Employment       Commission         Re:   Whether or not the statutory
           Austin,  Texas                                  language of Article    522lb-8(c)   s
                                                           Vernon’s   Civil Statutes,   14 broad
                                                           enough to authorize    a member      of
                                                           the faqulty of a State institution
                                                           of higher learning to serve on
                                                           the Advisory    Council of the Texas
           Dear   Mr..B’rown:    .                         Employment     Commission.

                         You request      the opinion of this office upon the question
           presented   in your letter     of February   20, 1957, which is as follower

                          “‘Employment     Service     and Advisory      Council:
                  The Commission        is ZiiKiXeemo         operate ‘P
                  employment      service, but it is not necessary          that
                  same be operated as a separate             divialon of the
                  Commission.        The’ Commission       is also authorized
                  to appoint a State ‘Advisory        Council composed         of
                  persons    Pepr’esenting    employers,     employees      +nd the
                  public.    Advisory    Council members         shall be allowed
                  and paid0 as a part of the cost of administering                &is
                  Act and in accordance         wSth regulations      of the Com-
                  miesion,    necessary    travel and subsistence         expenses,
                  in addition to a per diem allowance,             in connection
                  with meetings      of the Council$ buf they shall for no
                  purpose be iegarded        as State employees.          The
                  CommlssPon      shall fix the composition         and establish
                  the duties. of the State Advisory         Council and may
                  take such action as it deems necessary              ‘or suitable
                  to thlls end,    The Commission        may likewise        appoink
                  and pay local advisory        councils    and consultanks
                  under the game conditions         prescribed      herein for the
                  State Advtaory      Coudcil.”   (Art, 522lb-8(c),      V.C&)

                          “In view of the policy reflected      by the sFlaMcs
                  dealing with the.State       Youth &velopmeti     Council
                  (Art, 5143c-4,    V.C.S.)    and the State Board of Trustees
                  of the R’etlrement     Sys%em for State Employees       (Ark.
                  6228a-6    A, V&A),       your opinion is reques%ed ns to
                  whether    the ststutory    language quoted ls broad enough
                  to authorize    a member      of the faculty of a Stats insti-
                  tution of higher    learnlng    to serve on the Advisory
Hon.   Perry   Brown,   ,page 2 (WW-64)




        Council   of the Texas   Employment    Commlsslon.

              “If he is legally permitted so to serve,  may he
       be reimbursed    for hls necessary  travel and subsistence
       expenses,   if he is paid no per diem allowance   in ad-
       dition? n

              Your request presents      at once the fundamental     question of
whether or not the occupancy      of the positlon of a faculty member           of
a Siate lnstltutlon of higher learning and of membership           In the State
Advisory   Council, provided for in Article       5221b-8(c),  Vernon’s     Civil
Statutes, is in anywise in violation      of Section 33 or 40 of Artlcie ‘XVI
of the Constltutlok  or otherwise    illegal because     of incompatlblllty    of
the two positions.

            Section 40 of Article XVI of the Constitution forbids any
person to hold or exercise  at the same tlme more than one “civil
office of emolument*  with certain exceptions with which we are not
here concerned.

             The position of a faculty member      of a State institution of
higher learning   1s not a’ civil offlce.~ Such a faculty member     is ‘an
employee   of the State but not a civil officer.  even though his posltion
1s bne of emolument.

                 Section 33 of Article XVI,of   the Constitution  is more
restrictive     than Section 40 of Article   XVI of the Constitution   and
Section 33     is the one with which we are here more directly        concerned.
It provides      as follows:

              -The Accounting   Officers of this State shall nrKther
       draw nor pay a warrant upon the Treasury        in favor of
       any parson,   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 thls Constitu-
       tion. . ..”

            This section extends the disqualification    of a person beyond
the mere exercise    of a clvll office of emolument.    It includes the hold-
lng of any other ‘positton   of honor. trust or profit” under this State
or the United States, except as prescribed     in the Constitution.

              The question recurs     then whether or not the position of a
faculty member     of a State-supported    institution of higher learning    1s
a ‘position   of honor, trust or profltm under this State.       Such a facul,ty
member     does hold a ‘position   of honor, trust or profit”,     and furkher-
more such a faculty member        holds such a position “under this State*.
This 1s not altered by the’ fact that the employment         1s not directly  by
the Stats but through Boards of Regents         or Dfrectors   who have
 Hon.   Perry   Brown,   page   3 (WW-64)




 control over such institutions.        Such   institutions   are   nonetheless
 agencies  of the State.

              We also hold that a member    of the Advisory   Council             of
 the Texa,s Employment   Commission   likewise   holds a position of
 “honor, trust or profit” under this State.

                It is therefore  the opinion of this office that Section 33
 of Article    XVI of the Constitution    forbids a member     of the faculty of
 a State institution    of higher Learning from receiving      any compensation
 whatsoever     from State- funds, whether it be classified       as per diem or
 straight   salary   or travel and subsistence    expense   or allowance    for
 services    rendered    as a member    of the advisory    Council of the Texas
 Employment       Commlsslon.    Even though only travel and subsistence
 expense    or allowance    be paid to the Advisory     Council member,      it is
 still a form of compepsatlon       for the services    rendered,    paid by the
 Comptroller’s      warrant upon the State Treasury.

              Out of ,precautiop,  we should also advise you that the con-
 verse of the statement    made in the preceding    paragraph   would be
 applicable  to the salary  paid to the faculty member     of a State lnstitu-
 tlon of higher learning.    In brief, he would disqualify    himself !f he
 should accept the position ads a member      of the Advisory   Council of
 the Texas Employment      Commission    from also recelvlng    his salary
 from the State institutlon   of higher learning.

                We   have not overlooked   the provision  in        this Act to the
 effect “but they     shall for no purpose be regarded     as        State employees”.
 This legislatlve     declaration  cannot be given effect to         classify the
 members    of the    State Advisory   Council as non-State         employees    when
 the actual facts     are to the contrary.

                  Neither have we overlooked      your reference      to other
   statutes   dealing with the Youth Development         Council and the State
   Board of Trustees      of the Retirement    System of State employees.          The
   Constitution    does not forbid the Legislature      from adding ex offlclo
   duties to officers    of the State, constitutional    or statutory,    for which
,. they receive     no additional compensation.       Their official   status  is in no
   manner changed by the;addltion       of such ex offlclo duties.

              We believe jthe foregolng   answers  the speclflc    question
 which you ask, but in support of our opinion reference         is made to an
 opinion by the Flrst   Assistant  Attorney  General  Cureton,    later Chief
 J.usttce of the Supreme    Court, in which he held:

                “It is very; clear,     therefore, that Mr. Mayes,  so
         long as he ,ls Lieutenant-Governor,        could not under the
         Constitution      draw pay from the State, as (1) agent,
         (2) officer,,i(3)    appointee of the State.
    i   Hon.   Perry     Brown,      page 4 (WW-64)




                        -As we have above endeavored      to show that a
                 professor   in the University   of Texas  is an appointee,
                 or in a limited sense an agent, therefore,     Mr. Mayes
                 could not draw a salary from the State as Professor
                 of Journalism    in the University.

                        ‘“The converse  of the above proposition     is also
                 true, and, therefore,   Mr. ,Mayts,   so long as he was
                 the agent or appointee of the State as a Professor         of
                 Journalism   in the University,   could not draw his pay
                 as Lieutenant-Governor     of the State, that ,being an
                 office within ~the ~meaning of the Constitution.

                        ‘Therefore,    should Mr..Mayes    accept the posi-
                 tion of Professor    of Journalism   in the University    and
                 at the same time hold and’exercise       the duties of’the       .,
                 office ‘of Lieutenant-Governor,    he could not draw pay
                 for either such .office or such position.n     (Opinions,
                 Book 30, p. 394)

                                           SUMMARY.

                        A faculty member     of a State educational
                        institutfon of higher learning   is a State,
                        employee’ holding a, position    f honor,     trust
                        or profit under this State anI a member           of’
                        the Advisory   Counctl of the Texas Employ-
                        ment Commission      ts also holding a pwitdon
                        of honor, trust or profit under tb.ls Stdtc,
                        The same person may not, consistent           with,            I.
                        Section 33 of Article   XVI of the Constitution,
                        hold both positions   at the same tima and
                        rece,ive compensation    from State funds.for       ..’
                        either.
i
                                                  Yours   very   truly,,

                                                  WILL WILSON     ”
                                                  Attorney General




        LPL:cs

        APPROVED:                 ,‘I:

        OPINION        COMMITTEE       ~,,’
        H. Grady       Chandler, Chairman.
