        OFFICE OF THE ATTORNEY    GENERAL   6F TEXAS




                                                  r of the State
                                                  lcm may imrve aa
                                                   lien Rmmy Bear-
                                                   the deeorlbed

          Permit us to quote y
e legal opinion i    this depa
         "one of the melabe*




    on the Alie                               t anembers of
    such boards                               are not ret-
    qaircd to gi

                                  ended by the Department
                                   have independentpovere.
                                   'to the Attorney oeixmal.
                                    .deolalonIn the matter,
                       therm hearing board*, In other vorda,
                      ly advisory capacity.
                       am advise whether la your opinion
                       for a member OS the State Board of
                      sanm tlms to uerve as a member of an
                   arlng Board under Seation 12 of Article
     16 of the Constitutionof this state. Your early ad-
     vice will be deeply apprealated."
State Board of Education, Page 2


            Cur investigationdiscloses the SollovIng additional
fasts regarding   the orlgln, status and eharactrr of an Allen
meary Bearing Board.
           Pursuant to Section 21 of Title 50 of the United States
&&~"&~PZ+6sldent of the United St&t&e by proclamationcharged
ths/Wited States Attorney General vlth the duty of executing all
r&ilatlons contained in tha proclamtatlon   cono~rnlngalien enemies
v~th%n continentalUnited 8tates.sad it8 possessions. In the
sxscution'6fhis responslbllit$in this regard, ths Attorney Gen-
&al has set up in,eaoh judicial district a,hearlng board for
alien enemy cases. Them, is no express conbtltutlonal'orstat-
utory provision for ths board. Its purpose aP4~tictlon Is to
hear and make recomnendat~onsto the Attorney QeZieral  with respect
to the dlspoaltlon of the -aagesof alien enemies brought before
      Written reports and reuo+wnd4tlons are made to the Attorney
&&al     by the board. Firraldeatilenlneachcasels      made by the
AttOrD3y  General and this deaiaiom 18 enforoed by the United
StatesAttorney. The board is smely~a fact f3.zuUng6ad advisory
sdministratlvelnstmnwntality; It Mither makes,nor enforces
dsolslons.
          The oath of office taken by members upon the Board 1s
prsaoribedand required by the Attorney General. The appointment
lstempo~rysadnotforanytlme        certain. Itlnheres in, end
sxlsts only because of, the war emergency. The board meets only
oucaslonallyand its activities are spopadie.
          Ton ask vhether a swsber of the State Board of Educatlo~
may ssrve as a member OS this board in view of the prohibition
containedin Section 12 of Article 16 of the Constitutionof Texas.
Section 12 reads as follows:
         'Ho member of congress, nor person holding or
    exercisingany office of &wilt or trust, under the
    United States, or either of them, or under any
    foreign paver, shall be eligible as a meinberof the
    Legislature,or hold or exercise any office of profit
    or trust under this State."
          It la clear that a member of the State Board of Bduca-
tion holds and exercises SD.offiae of profit or trust under the
State of Texas.
Stste   BOati   Of   ~UCation,   Page   3


          We must determine If membership upon sa Allen Enemy
gssring Bosrd constitutesthe holding or ese~alrlug of an office
of prqflt or trust under the United States. We have concluded
that ~$tdoes not.
          Tils preolse question has never been before the courts
of T0iaB.  Our conu~uslonfinds substsntlslsupport, hovever, In
other jurisdictions.
         .The case of lo~toskvs. wltohinson, 59 P, (26) 1117,
by the Supreme Court of Weshbgtoa,  presented the question of
&ether the aeceptsnoeby a State Sanstor of an appointmentas
District Supervisor of the Federal York8 ProgressAdninistrstlon
iacated his office. The constltutlonslprovision iavolved read
as follovs:
             "And if any person after his election as 8 mm-
        ber of the Legislature shell be eluoted to Cox&gress
        or be appointed to any other offlae, civil or mlll-
        tary, under ths Government of the Uuited States, or
        any other power,,hissmxptsnee thereof shell v8cstb
        his seat. l * +
          The appointment of the Senator in question uas msde by
the State Director of ths Works Progress A&slnlstmatlon,the State
Director aatlag under the suthorlty of the Federsl mergemy Re-
lief ApproprlstlonAat oi 1935, -15U.S.C.A.,  par. 728 note.  The
Pedersl lsglslstlonunder vhich the Dlreotor sated in m&k*    the
appointmentcreatqd no district or dlvlslonal office for the ad-
mlnlatrstlonof the V. P. A. The dlvlslon of the state into
districtswas s mere Mttcr of convenienceand, as said by the
court, *not required Q1rmsde msndatory by the lsv."
          The close parallel to the mstter before us is obvious.
In reaching Its decislcm that the Senstor was not appointed to.
8 civil office under the Oovemment of the U&It& St.&es snd that
his acceptsme of eatployment under the If.P. A. wsa not the ac-
oeptsnoeof a civil orrice, the court ulted the case of Bsrney vs.
Bsvkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583, and that aourt*s
Malysla of the authoritiesupon the Question of vhst eonstltates
U office. 8s follows:
Swt,e Board of Eduaation, Page 4


         "After an exhmkstlve eaMnetlon of the author-
    ltiea, we hold thst five elapenta OH    indispensable
    In any position of.publlc eqlmnt,:'b       order to
    mske it a public offlee of a civll~nStucbt (1) It
    must be created by the Constl~tlun OY?by the Legisls-
    ture or crested by a ~lclpsllty or other body through
    authority conforrti&.by.ths  Leglslatureq (2) it stunt
    possess a,dele$*tl~.of a portion of the sovereignpov6r
    of governrpeqt,.,ki
                      b6 exercised for the benefit of the
    publlCj (3) the povem~:coaferred,Uad the duties to be
    discharged,wst be defined, dlreatly or implledly,by
    ths legislatureor througk,leglalative*uthor%ty; (4)
    the duties must.be performed   Independentlyend vlthout
    control of 8 superlar power, other than the lav, unless
    they be those of sn lnferlop or subordlaat~ offlee,
    crested or suthorisedby the Leglsl&ure, and by It
    plsaed under'the general oontrol of a superior offlter
    or bodyj (5) it must have some penBaaeaay @ad ilontlaulty,
    and not be only temporary or oaoasloaal.    Ia ddition,
    in this state an officer must tske and file an offlolal
    o&h, hold a eomslsslon or other writtea    authwlty, utd
    give sn offlol8l bomd, If the latter be required by
    proper authority.'
          Employing the wruhanlsl.of this snalysis in its applies-
tlon to the appointuent of a Dlstriat Supervisor of the Paleral
Works PzvogressAdminlstrstlon,the Sup=     Court of Usshlngton
declared,flrst, that no office of dlstrlct.supsrrisorfor the ad-
mlaistratlonof the W. P. A. had ever been areated snd the super-
visor ves\no more than 8a enployee under the state Director:
second, ?$ere was no delegetlon of sm p&t of the sovereign
power of gorermsent to the District Znpervlsor; third, no pwers
Were coaferredand aoae could be defined; fourth, the Dlatrlot
Supervisorhad no duties to persons independentlyend vii&out the
control of his superior;and fifth, there van nothing to lndlcste
~pemmaeaeyor      continuity of theappolntaentlnquestlon.
          The Usshlagton Supreme Court concluded thst it van bound
to hold thst the Senator was not appoInted to 80 office because
*the great velght of authority veil supports the necessity of meet-
lng all of the conditions laid dovn by ths ltontsnaCourt and l l *
it is not made to appear that these condltlons,or any of them,
hsvebeenhereaet.***"
    St&e Bemd   of Zduakion, Pacle5


              Of like hold- srs the eases of Blggs vs. corley, 172
    Atl. 415 (I)el.)lCut-tin vs. State, 214 P. 1030 (Cal.) snd mir
    vs. Elliott, 15.6P. 216 (~010.).
              Similar constitutions1prohibitionsvere involved in
    State vs. Joseph, 78 So. 663, by the Supreme Court of ~ouislsna.
    m this case the Clerk of %ourt and Xx officio Jury Commlsaioner
    h& been appotited a member of the 'local board" westted by the
    sat of Congress of Msy 18, 1917, the seLe.ettlve  urviee lav of
    that war.  spooking of Article   164 of   the ~siaaa   constitution,
    &MI contained a prohlbltlon slmS.larto thst under reviev of
    the Texas Constitution,the court    declared:

              "In the instent     cebseIt ma7 vell be oonuelved
         thet artlele 164 of our Constitutionvam not irslbd
         with referenae   to the existence of 8 state of mkr,
         whop It vould betoms necessary for the federal govem-
         ISoPt,ill the t3UrOisS Of the POVOr iWXlftST6d aad Of
         the obllgatlon Imposed upon it by the constitutionor '.
         t.?leullltedstates,   for thepreservetlonofours~tem
         or government and the protection Of hmssnlty, to rva¶.l
         itself of 8l.lthe resources at its ~cssmand,     and an
         exoeptlonmust be read into that srtlole and into every
         artidLe of everystate Uemstltutlonvhlch may be can-
         stmod as~obatRtctS.ng     the ()t4rc4lse
                                                of that power and
         the discharge of thst obllgrtlon, for the Constitution
         of theunited states is the paramom3tlawof the lam&
         zr :I&?          upon the congress the polfer'to provide
                    o3msoadafensei' to ~doclarsvar;' to 'wise
         and,supportarmlesx ,'toprovide for oslling fonth the
         sillltlato execute the 18~s of the IJnion~~*to provide
         for orgsxilzlng,   ambg, and dl801p1lnln.g    the mllltla
         and for goveming such part of them as may be emplopd
         in the service of the United States;' and 'to make sll
        .%~a vhloh shall be necessary and proper for oaarging
         into exeetltlonthe foregoingpavers.' Canat. 8.9. AFk.
         1, I 8. And, In the exerelse 0S thepowers so40nTeAedr
         the Cortgresshas enacted the statute k~%ovnas the
          *Selectlve~~:Semloe  L8v9'  oblch provides for the aonsurlp-
         tlon of c&tens of the country for military service Pt
         home and abroad, snd the conssrlption,it saaybe ssid,
         of $ate officers and cltiaens for the dlsme           of cer-
         tain ftzuctlonsconnected therewIth>a~ follewsr


              whereu~thaCQurteasveredthe         follovl.Qg
                                                          @8stlollsn
     the negative:




i
stati miard or Education, page 6


          'The question in thla ease then Is ahoula artl-
     c1e 164 of our Constitutionbe interpretedtoB6zm
     that a citizen, holding 8 state offlae, upon whi?m,
     under the C~onstltutlonand laws of the Onittd States,
     addltlonal duties are iorr;oeed
                                   by the President in
     aid of the ralslug and xsalntenrmceof an arny for the
     prosecution of a great and necessary nr, Sorfolts his
     office by reason of his acceptance of that vhlch it
     vould be unlswful aud unpntr%otic for him to dec13nePm
          This latter language and the Texas Supreme Coxwt saw
of Cerpenter v. Sheppai'd,135 Tex. 413, 145 S. U. (2d) 562, ns
cited vlth approval by the Suprmte Court of California in the case
0s BIeCoyvs. Board of Supervisors.114 P. (26) 569, decided June
30, 1941. The C811foXTll8 court also de0lared:
            "Rot only have State and !Katloml leglelatlre
     bodiesbeen alert to meet the need for ape&al pro-
     tectivem6a8ure~a.but atate taadPbd6ral courts have
     kept paoe and have evinced d firm intention to ta!m
     a llbersl vleu of there earrsrgencj
                                       ensatFaantsin order
     that their proteatlvepurpoasa ma)-be fulfilled vlthout
     undus lmpoaltlon of conatitutlonalltiltatlansor
     h%ndsrsnce through narrov judlclsl conatruetlon.
          PPIiOrthXW8t0, On I&V 2% 1941, ths Z3Jp8iW COUPt Or C&
lfonala,   in Parker vs.
                       Riley, 113 P. m,   upheld 8 statute prod.&
ing for t&e creation cf the Callfornle Conrmissionon Saterstate
Caoperatlon,against the contentionthat it was unconstitutional
be&ause of the ~follovingprovision of the Cellfornla Constltutlonr
          "Ho Senator or member of Assembly shal1, during
     the tern for vhlch he&all have been elected, hold or
     accept say ofzice, trust, or ainploymentunder t&Is
     state; + + l
          The statute meat*    the cmmA3slon provided that nmmbem
of the Senate and Assermblrshould constitute its membership. It
vas cortended that mmbsrship upon tbe comisslon oonstltuted811
*office,trust, or employmxlt,Yvherefore members of the Laglsla-
hrs could not lavfully serve in such capacity. i   ,.
                                                 I_/
          In holtllngthat membership upon the eomissl.onvas not
t.beholding of an “office” or "trwt," the eomt said:
    g&de Board of JSducatlon,
                            Pam 7


              "It may be noted, howwer. that the positions
         created by the statute here attacked Wok certain
         elmsenta usually associatedwith an *office*or
         'trust.' Thus, it is generally said that an office
         or trust requires the vesting In an lndlvldual of
         a portion of the severe    powerad the state.
         (Citationof euthorities'ep The positions here created
         donotmeasure up to so hlgha standard. They ln-
         solve merely the lnt8rchangeoi lnfonsatlon,the as-
         sembling of data, and the fomulation of proposal to
         be placed before the Legislature. Such tasks do not
         require the exerolse of a part of the sovereignpower
         of the state."
               In Glllesplevs. Barrett, 15 H. B. (26) 513, the suprem
     Court of IllInoIs held that a constitutionalprovlslon prohlblting
     state legislatorsfrom rscelving any sclvll appoInt+smnt'   vaa.not
    vt6latedby aots creating the Qettysbwg XemorIal Casml6slon, the
    .&oM.q%+?&e Camsis~sIon aud the BetzYork World's Fair CQIIILIssIon,
    .to k toaposedpartly of hd43 lagislatom to eorve without sala-
    rioa. The court declared   that for swh an,appointmentto v$olate
     sonstitutIona1provisionsof suoh nam       the appoiatment  must be
     ef * pensanentnature and must lend itself    to per6oual vise-
    ment vith an opportunityfor private gain, pecuntsry or othervIm.
    And the court pointed outt "The 8ppOiZLtXSeXXtS are mewly tempOV!APy;
     the statute forbids the payment of 8alarlesdimtly or lndlreetly,
     snd no policy-makingpower l.sdelegated. The members of the cop-
    mlsslon ars merely intrustedvlth the supervision of the minister-
     Iel details of a legislativeenaetrent.m
              The applloatlonof these at&horltles to the question
    you have propoundedappertaining  to Section12 of Artiole 16 of
    the Constitutionof Texas Is apparent. Therefore we hold.that t.hls
    P~~vIslonof the Constitutionof Texas does not prohlblt a aider
    Of the State Board of Education fnm serving at the same time as
    s member of an Allen Fin- Hearing Board, oonetitutedas we have
    deacrlbed.
              We Mgard it as proper to observe that we have COnsideP-
    ed the appllcatlonof section 40 of Artlele 16 of the.TexasCon-
    stitutionand are of the oplulon that it does not forbid the
    Wmbemhlps under review.
              Moreover, in order that the crcmplstte
                                                  r~mifIcatlonsof
    thh qU88tiOnmay hSVe been explOP6d end passed upon, we h8V8 alao
    COnsIderedthe applicationof Seetion 33 of Article 16 to the mat-
    ter under revlev. Tbl.5Sectlollr6ads in part.as follovs:




I
St&o   Board of Bduoatlon, Psge 0


             "The aoooutitingOffiU8PS of this state shall
       uelther draw nor pay a warrant upon the Treasury in
       favor  of any person,1ior salary or oompensatlonas
       agent, officer or appointee,who holds at the ssme
       time any other offloe,or poliltlonof honor, trust or
       profit, under this State or the United States, !x-
       oept es presorlbed in this Constitution.* l l
          Clesrlg, of oourse, a ms4s?b6r
                                       of ths State Board of
ausatlon is an agent, officer or appointee" of the atate 0r
TewM   l
        We have akeady de&led that SWSb8PShip upon an Alien
pnw Hearing Board Is not an "offioe." It 1s Our opinion,more-
ov.p, that it does not fJOXlStihlt8
                                  a "positiOn*a5 that t8l%lYBS
intendedby th8 framers of the Constltutlon.
          The case of Johnston Y. Chambers, 98 S. 8. 263, by the
gwrase Court of Georgia, arose under the SeleotiveDraft Aob OS
the World Var. The Polioe Ccsmniaslon8r of the Olty of Atlanta
-5 appointed to the Bow-d of Exemption, sonstitutcsd ia all l *sea-
tlal8 actthe Al&n FinemyIfearingBoard we an oonsldering. It was
sante&8d that the Ccmslsslonerbemuse fbereby disqualifiedircm
hoMing the office of oU8sloner     uudsr the charter of the City
ef Atlanta providing a8 follovst
            "St shall be unlavful for any person holding
       an off100or position of trust, or emolument, or
       regular smpuysmnt, mder appointmentby the President
       of the United States, or any department of the federal
       government,l l itto ocoupy or hold the position of
       laspor,alde1%1SU3,
                        or OOunCib5.1~Of the Olty Of Atlanta,
       or m8mbershlp on any executive board of said olty, or
       any other office or position of trust, honor, or
       emolument, or regular employment in or under said olty
       government, * l * .* (Undereooringours)
          It is observed that the t8ISSS"off'ioeor pOsitiOn' were
present.'The oourt held that the CommlssIonerva8 not dirqudi-
fled, saying In part:
            ' l * l The dutl88 vhloh those thus called upon
       were expected to fulfill ver8 of a pstPiOtiC natUM,
       from whlth a oitlsen could not esoape vlthout evading
       his patriotic duty to aid in 8 temporary emergemy
       his country end his government,in seleot%ng and or-
       genlelng an anay fit for the high and lmperlous duty
state Board of Eduaation, Pago,9


         aonfx-ontlngle. The dutlee vhloh the80 board8
         vere aalled upon to perform VOM of the met ex-
         alted oharaoter,but they wore *8 trti8itov and
         ephemeral ~8 they vere exalted;;'andit van the
         duty of any olticen aealledto m$@fm~hlp upon one
         of these board8 vhether a private olticen or the
         holder of any ofiioe, to lay aride all other dutie8
         for thehour.and~epondto     the esll. The court
         below properly denied the appllaatlon."
           vhile ve think it is rnanlfestthat the term w~fffeeg
pnd "po8itionRare not s~onymous and vere not intended to aonvey
~~saau,meanlng and oantaln the mme prohIbition,ve are of the
opf.&on that the dlfferenoebetveen the elgn2fi~etlonOS the
t+mt3 must neael3rar%lybe one or degreet that they vere used ill
a relative              08 a n q sp o %llta ent mua t h a r e l aortain
            8enae. j\lllt
&i$&tr      t0       O~lltitllte   811 Off$Cie,   jU8t   80   lrmst   Pp     CrppOintit       m8-
8080 Oel'tsin08WSltial elaWlt8 t0 OOMtitUtff a                             ~itiOZl.       m
aluo Reading o.mmvell, 52 P. (26) U55 (Ark).
             t9rpl 'bO6itiOn'
                 m            islp11ef8,
                                      BIP  0-3'8, 8kbility,
ompesmation, duratiorh The absenae, or re?atlve ablienoe,OS thewe
88WUitial.s,
           appertalnf..ng
                       to member6hlp upon an Allem Enemy Eearlag
Bmrd,is mnifeest Mm our reviewof it8 c&gin, etatw and
obaraoter.~F7wtLcularlyoontroll&3ga* ~theaefaokt m661berehip
upca the Beard ls enttrely temporaryz It& memberr ‘we engaged in
the do&g of an emergsuxoy rervlca   for the Government in glme of
raw the sarvlcs8 performdars      erosnt~~de8ult~ry,     spoxmdia,
oaaarbm6l~  no 0ompenmtion   18 paid and there ia al% abrenoe of
pemmenoy         and aontlntity in the Board Itself.
                                                                                              .
                                                              YOUX'8very‘truly
