                         my   6,     1959



Hon. R. H. Cory, Chairman          Opinion No. w-619
Stat@ Affairs Committee
House'of Representatives           Re:   Constitutionality of House
56qh Legislature,                        Bill No. 495 and pending
Austin, Texas                            committee amendment to said
                                         Bill and related questions.
Dear Mr. Gory:
          The State Affairs Committee of the House has requested,
through you as ChaIrman of .the,Commlttee,the opinion of the At-
torney Qeneral relative to the constitutionality,,of House Bill
No. 495,and a pending commltte,eamendment to the bill. Your re-
quest for an opinion asks the following questions:
          ,111. Request a.rullng on ,the constitutlon-
     ality ef H.B. 495.
          "4.' Request a ruling as to whether or not
     teachers, adminlatratorsj and supervisors In our
     state-supported colleges, universities, public
     junior colleges and public schools are holders
     of 'publlo brustl within the meaning of Article
     I, Section,4, of the Constitution of The State 3
     of Texas.
          “3.  Request an opinion on whether or not
     H.B. 495 Is enabling legislation for Article I,
     Section 4, of the Constitution of the State of
     Texas. tz
          "4. Request that the ~op'lnlon~rule on above
     three points on both the original bill and,the'
     pending committee amendment, which Is a complete
     substitute.;"
    Hon. R. H. Cory, page 2 (w-619)

              Section 1 of H.B. 49.5provides as follows:
              "No religious test shall ever be required as
         a qualification to teach or'instruct in the Public
         Schools, Public Junior College or State Colleges
         or Universities of this State; nor shall anyone
         be excluded from holding said job or position on
         account of his religious sentiments, provided he
         acknowledge the existence of a Supreme Being."
              Section 2 requires each teacher, instructor and pro-
    fessor to acknowledge under oath his belief in a Supreme Being
    at the beginning of each school year as a condition to his em-
    ployment or retention. Section 3 imposes a penalty for viola-
    tion of the act of $100 to $1000 fine.
              The committee amendment, which contains a complete
    substitute for the bill, provides in Section 1 as follows:
              "No religious test shall ever be required as
         a qualification for adminlstratlve and supervisory
         employees in the public schools, public junior
         colleges or state colleges or universities of this
         State, nor as a qualification to teach, instruct,
         supervise or ,adminlsterin such institutions, nor
         shall anyone be excluded from holding any of said
         positions on account of his religious sentiments,
         provided he acknowledge the existence of a Supreme
         Being."
              Sections 2 and 3 require the oath as a condition of
    employment or re-employment, but indicate that teachers and
    other employees now under contract need not give the oath until
    completion of their contract term. No criminal penalty is pro-
    vided, but Section 4 provides that no State funds shall be paid
    as salary or other compensation in the absence of compliance
    with this Act.
              Section 1 of Article VII of the Constitution of Texas
    renders it mandatory that the Legislature "establish and make
    suitable provision for the support and maintenance of an effi-
    cient system of public free schools." Under this section the
    Legislature has the power to do anything not otherwise prohib-
    ited by the Constitution in order to discharge the duty placed
    upon it. Glass v. ~001, 166 s.w. 375, 106 Tex. 266.




5
.-   -




         Hon. R. H. Cory, page 3 (w-619)

                   The Bill of Rights embodied in both our State and
         Federal Constitutions guarantees to the individual certain
         inalienable rights which both the courts and the legislative
         bodies of the nation have traditionally guarded. Included is
         the right of the individual to think and believe on matters
         both temporal and spiritual in accordance with the dictates of
         his own conscience. Implicit In the right to believe is also
         the right to disbelieve. It does not necessarily follow, how-
         ever, that a person may think, believe, or act as he may choose
         without affecting rights to public provileges to which he might
         otherwise be entitled. This limiting factor was illustrated
         by Justice Holmes in an early case when he declared that the
         appellant, a policeman, had a constitutional right to believe
         as he may wish, but he had no constitutional right to be a
         policeman. This legal principle is announced and followed in
         a number of cases, both federal and state.
                   The rule is announced in 78 C.J.S., Schools and School
         Districts, Section 154, as follows:
                   "A person has no constitutional right to be
              employed as a teacher in the public schools, as
              such employment is not an uninhibited privilege,
              and he has no right to serve except on such terms
              as the state prescribes. . . . Subject to such
              limitations as may be imposed by the Constitution,
              the power to fix the qualifications of teachers
              may be exercised by the legislature or by school
              authorities under and within the limits of the
              authority conferred by statute. . . . In the
              exercise of its power, the state may require as
              qualifications and declare as disqualifications,
              factors other than scholastic, including as a
              qualification, adherence to the form of govern-
              ment of the United States, or a loyalty oath, and
              as a disqualification, advocacy of the overthrow
              of the government bx force, violence or other un-
              lawful means. . . .
                   See also: Board of Education of City of Los Angeles
         v. Elsenberg, 277 P.2d 943; Adler v. Board of Education of City
         of New York, 342 U.S. 485; Marrs v. Matthews, 270 S.W. 5% (Tex,
         Civ,App. 1925); Board of Education of City of Los Angeles v.
         Wilkinson, 270 P.2d 82; City of Amarillo v. Hancock, 239 S.W,2d
         788 (Tex.Sup.); Fuller v. Mitchell, 269 S.W.2d 51'( (Clv.App.
         1954, error ref., n.r.e.).
Hon. R. H. Cory, page 4 (w-619)

          In the Adler case, supra, the Supreme Court of the
United States, pei;Ji;i?tice
                           Minton, described.the obligations
of teachers to the State, as their employing authority, thusly:
          "It is clear that such persons (school per-
     sonnel), have the right under our law to assemble,
     speak, think and believe as they will. . e . It
     is equally clear that they have no right to work
     for the State in the school system on their own
     terms."
Of similar import is the language of the Texas Court of Civil
Appeals in Marrs v. Matthews, supra.
          It must necessarily follow from what we have said
that, unless prohibited by some specific provision of our
State Constitution, both House Bill 495 and its pending amend-
ment are constitutional. The bill does not, in our opinion,
contravene the general guarantees of personal religious free-
dom as contained in either the Fourteenth Amendment of the
United States Constitution or Section 6 of Article I of the
Texas Constitution. The authorities cited, we believe, sustain
this view.
          There remains the question of whether the proposed
legislation is repugnant to Section 4 of Article I of the Con-
stitution of Texas, which provides:
          "No religious test shall ever be required
     as a qualification to any office, or public trust,
     in this State; nor shall any one be excluded from
     holding office on account of his religious senti-
     ments, provided he acknowledge the existence of a
     Supreme Being."
          The earlier Constitutions of Texas simply provided
that no religious test should ever be required as a qualifica-
tion of any office or public trust. The language was virtually
identical to that of Clause 3 of Article VI of the Constitution
of the United States as now written. The Constitution of 1876,
however, added the provision "nor shall anyone be excluded from
holding office on account of his religious sentiments, provided
he acknowledge the existence of a Supreme Being."
          It has been suggested that the effect of this added
provision was to make it possible to exclude atheists from pub-
lic "office", but not from a "public trust", the latter being
.;   -




         Hon. R. H. Cory, page 5 (W-619)

         still governed by the "no religious test" provision. We are
         unable to agree with this conclusion.
                   We have reached the conclusion that the words "pro-
         vided he acknowledge the existence of a Supreme Being" modify
         Section 4 of Article I In its entirety, and not just the last
         clause thereof. It is evident from reading the committee amend-
         ment to H.B. 495 that the committee must have reached the same
         conclusion. A semi-colon separates the two clauses in the con-
         stitutional provision, but the committee amendment, which follows
         the constitutional language very closely, omits the semi-colon
         and uses only commas, Section 1 of the committee amendment is
         quoted at length near the beginning of this opinion. We quote
         the material provisions:
                   "No religious test shall ever be required as
              a qualification for . . . employees . . a) nor as a
              qualification to teach, . . . in such institutions,
              norshall anyone be excluded from holding any of
              said positions on account of his religious senti-
              ments, provided he acknowledge the existence of a
              Supreme Being."
                    It seems to us that the word "nor" in the Constitu-
         tional provision furnishes the key to the proper interpretation
         of the language used. The first clause, preceding the semi-
         colon,forbids theuse of,a religious test as a qualification for
         any office or public trust. Standing alone, such a provision
         would certainly limit the power of the Legislature in setting
         up qualifications for office. Now, if we assume that belief
         in a Supreme Being is R religious test within the prohibition
         in the first clause, and that the proviso only refers to the
         second clause, then the fact that persons may be excluded from
         office under the second clause would create a conflict between
         the two clauses,  or at least clause number two would be an
         exception to clause number one.
                   It is at this point that the word "nor" assumes criti-
         cal importance. The word "nor" is expressive of the fact that
         the words which follow it will be in general agreement with that
         which has gone before. If a repugnant provision such as an ex-
         ception is to follow, it is our opinion that the only logical
         word to use would be "but", or 'Ihowever",or "providedU, or some
         other word of similar import. On the other hand, if we consider
         the constitutional section as a complete, integrated sentence,
         with no conflicts, but with an exception at the end which is
         applicable to all that has gone,before, then the use of the word
                                                                                  .       ,




                                                                                  ”   .




Bon. R. H. aory,       page 6 (w-619)

*nor* becomea understandable . It Isa true that the provlslon
in queetion is net souahed in the cleorert           language, and the
punctuation may leave something to be desired,            but the intent
and purpoae of the framers of our Constitution            Is clear,    The
seoond clause before ‘the proviso adde nothing newi since ‘Ire-
llglous   @entlments” is a.ertainl      inaluded within the,‘terin “Fe-
llgiou~c+ teat”.;  We.th,eretore th 9 nJc that’ the flrst~ part of the
eeeond elmwe ‘was added merely for emphaile,           and the net effect
of the constitutional     provleloa    Is that,no person IMY be die-
qualified   for, public offloe    or publlo truet as ‘long 8~ he ac-
knowledges themexletence,of~a       Swreme    Being.     It folloWa that
we are of’ the opinion that H.B.’ $ 95 and~the committee amegdment
thereto are not In violation       of’ Seotlon.4   ol' AtitlolC'I   or the
Texae Conetltutlon.

           ‘There is another reason why we think the bill and its
amendment are oonstltutlonal.        The flret  clause of the oonntltu-
tlonal provision    refers to “any, ofiioe,    or public trust”.    The
second cluase refers to “holding offloe”;          For the reason@ stated
below, we are of the opinion that the words “holding offloe”           are
used in the,senee that they mean the holding of B positian          of,
public trust ‘.a8 well as the holding cl t&t ‘whlsh,ie teohniaally
denominated an.“offloe”.     ,If the Intention     of the seoond clause
of ,the provision  had been to refer only to an “of’flce”       (md to
exalude,a “public trust”,from      its provision,    we think It ~moat
likely  that some reference     to the term “publlo trust” would
have beam made In the eecond olauare, No euch reference,was          made.
              This offlce   has consistently   used the terms “offloe”
and “public     Crusti” interohangeably,     Consider for example:
              In Attorney    Oeneralfa   Opinion No, v-834,     we said:
           ‘%emberahlp on ‘the b&d ‘of truateee ‘of ai
     Independent sahool dietriot    la’en office.  ..,
     Btit a tz+uaate&of an lndeaendent aahool dietM,oi
     hold8 an office   of honor-and ttiu#t wIthin the
     meaning ior Section 33 Of Article   XVI of the Texas
     Conetltutlon,”
            Attorney ffeneral’s  Opinion No. C-1422,involved  a local
sohool   board,, a a.ollege bbard and a U.S. Poetmaster., It stated8
             “There    -aambb, tie :doubt ,that ‘aLI -three’ oi ~the       .. %
     offices    here    u~nder c&sLderatlon      ape positlone~of
     honor, trust       or prbfl,t wlthitj the meaning of’ the
     above quoted        aenstl.%filonal   provlalon.”
.




    Hon. R. H. Gory, page 7 (w-619)

              In Attorney General's Opinion No. O-2701, written
    by Honorable William J. Fanning, formerly an Assistant Attor-
    ney General and now a Justice of the Texarkana Court of Civil
    Appeals, it is said:
              "There can be no doubt that a trustee of an
         Independent school district holds an office of
         honor and trust within the meaning of Article
         XVI, Section 33 of our State Constitution."
              The Texas Constitution so uses the words. Article
    III. Section 20. makes certain oersons Indebted to the State
    ineilgible for "any office of p&oflt or trust under the State
    Qovernment."
              The case of Orndorff v. State, 108 S.W.2d 206, 209
    (Tex.Civ.App. 1937, error ref.),in construing the constitutional
    provision aforesaid, stated:
              "It follows, necessarily, that though, within
         the contemplation of certain statutes, a county
         commissioner may not be an officer 'of' the State
         Government, he does hold an,office of trust and
         profit 'under the State Government'."
              In 67 C.J.S. 96, Officers, Section 1, it is said:
               "The term 'office' is one which is employed
         to  convey various meanings, and no one definition
         thereof can be relied on for all.purposes and
         occasions. It has been said that, when used in
         any proper sense, the term implies a duty or
         duties to be performed, and that it Is generally
         agreed that a position Is an office when the
         elements of trust, honor and compensation com-
         bine with definite duties and responsibilities.
         An office has been defined as a duty, charge or
         trum       a place of trust . . 0 a right and cor-
         responding duty to execute a public or private
         trust . . .,'Ietc.
              In 42 Am.Jur. 879,   Section 2, it is sta,ted:
              "There are numerous and varied definitions
         of the terms 'office', 'officer', 'public office',
         and 'public officer!, as used In statutes and
         Constltutlons. They are terms of vague and var-
         iant import, the meaning of which necessarily
                                                                 .




Hon. R. H. Cory, page 8 (WW-619)

    varies with the connection in which they are used,
    and, to determine it correctly in a particular
    instance, regard must be had to the intention of
    the statute and the subject matter in reference
    to which the terms are used."
          Section 8 of the above citation states:
          "The American concept of a public office is
     that of a public agency or trust created in the
     interest and for the benefitthe     people."
          Section 9 provides:
           "With us, public offices are public agencies
     or trusts.  . . .'

          What we have been trying to Illustrate is perhaps
best pointed out in the following quotation from Section 23
of the same authority:
         "Constitutions and laws sometimes contain
    provisions applying to lucrative offices, and
    offices of trust, honor and profit. The courts
    have been called upon to define these terms.
    . . . The line between 'offices' and 'places of
    trust or profit' within the meaning of such pro-
    visions has not been clearly marked, and they
    may be considered as approaching each ,other so
    closely that they are in all essential features
    Identical."
          Our office held in Opinion No. V-32.5that college
professors, as well as public school teachers, hold positions
of "honor, trust or profit". We are also of the opinion that
administrators and supervisors In State supported colleges,
universities, public junior colleges and public schools come
within the same category. We accordingly answer your second
question in the affirmative.
          We also hold, in line with the authorities above
quoted, that the words "holding office" in the second clause
of the constitutional provision In question were used by the
framers of the Constitution in the sense of holding a posi-
tion of "public trust" as well as holding that which may tech-
nically be denominated an "office". We can perceive of no
Hon. R. H. Gory, Page 9 (WW-619)

substantial reason why the framers of our Constitution would
be concerned over whether or not "officers" believe in a Su,-
preme Being and yet not be equally concerned as to whether or
not persons holding equally Important positions called posi-
tions of "public trust" should believe in a Supreme Being.
          We point out what we consider a possible flaw in the
caption of the committee amendment which could impair the va-
lidity of the bill due to conflicting provisions. We refer to
the portion requiring teachers, etc. Eta acknowledge the exist-.
ence of a Supreme Being but that no religious test.shall be re-
quired.' We have not found it necessary in this opinion to pass
upon the question of whether or not the oath requirement in t.!~ie
bill is a 'religious test'. If i.tis a 1rel,igfcils,tesC,
                                                       !, there
would be a conflict in the caption, Becalzsethe issue is not
free from doubt, it would be our suggestion that the capti%? be
amended so as to eliminate this possible conflict.
          It follows from what has been said that we are of the
opinion that, with the exception of the possible defect.in the
caption above pointed out, H.B. 495 and the committe& substitute
therefor are constitutional. The bill Is in t,henature of en-
abling legislation, setting up the meehani.csfor applying the
permissive exclusion from employment of those who decline to
acknowledge the existence of a Supreme Being,
                            SUMMARY
          H.B. 495 and the committee substitute ,t:her+
     for requiring that teachers, administra~torsand
     supervisors in State-supported educationa: insfi-
     tutions must acknowledge the existence of a SK,-,
     preme Being as a condition of employment, are
     constitutional. Such teachers, administ,rat:ors
     and supervisors are holders of "public trust:"
     within the meaning of Article I, Ses'lion4 3f We
     Texas Constitution. Such l~egis:lati:nis in the
     nature of enabling legislation under the said pro-
     vision of the Constitution.
                             Yours very truly,
                             WILL WILSON
                             Attorney General,of Texas
Hon. R. H. Cow,   page 10 (W-619)

APPROVED:
OPINION ,COMMITTEE
Geo. P. Blackburn, Chairman,
H. Grady Chandler
L. P. Lollar
Ralph Rash
JlE'VIElWED
         FOR THE ATTORNEYGENERAL
BY:
     W. V. Geppert




           ..
