,



                         THZ ATTORNEY
                                    OBNBlAL

                               OF TEXAS

                             Austin, Texas




    Honorable YllllslnM. Whyburn, President
    Texas Teehnologloal College
    Lubbock, Texan
    DearXr.Whyburnr             Opinion No. O-6232
                                Rs: Whether or not the Presl-
                                    dent ot the Texas Techno-
                                    logleal College may ale0
                                    serve as Chief of the
                                    Operations Analysie Sea-
                                    tlon (U.S.) and Inalden-
                                    tal que8tlon8.
               owebeg to aaknowledge receipt of your letter aa
    f011ou81
             ."I,should like to request a rul+    on the
         foli&w%ng,P*tter.
               'On S8pt8mb8r Zlth, 1944 I amum& my duties
        M Presldont of the Texae Te&nologlaal College
        and uu plaoed on the,offialal payroll of that
        in8titution. Prior to that time I held an ex-
        oepted appolntunt with the IS.3. War Department
        U an 8x@ert wmfmltant with speoIfIa aanlgrnnent
        a8 Chlei, Operation8AnalylrlsSMtlon, Head-
        quartern, Third Mr Porce, TEapa. Florida: Can-
        pansatlon ?or thlr earvIce wae on a baa18 of $25.00
        peLetifor     eaah day on which aatual servlae WM
                     The haraoter of the remlees rendered
        unde+ thilr appolntnumt and the diffioultp of'find-
        ing a suitable replamnent for me makes neaeerrary
        the oontlnuation of the above named War Department
        appointmentuntil suah a t&me as Its dIsaontInua-
        tion Is Indlaated by the Air Foroes.
             *It Is expeated that be@nnIng with the month
        of Ootober there will be several days out of each
        month when I aan be away from my duties at this
        uollege for servloe with the Third AU? Forae. Par
        Such days It i8 proper that I rWeiVe  COC4phlratiOn
Honorable Wlllima X. Whyburn - Page 2



     from federal fund8 and rooordinglythat I
     not receive oollega funda. I am aware of
     the Texas ConatltutlonalprovI8lon aoverlng
     this eituation. It Is my lrtrongdesire that
     the portion of ay State salary thus released
     be added to the fund8 of the Texas Teahnolog-
     lcal College. Slnae oertelnof my dutIe,shere
     will need to ti perfonued by othem, and any
     saarlflae of 8erviae due to my ab8enae will be
     made by the College itself, It 18 my hope that
     the adjustment oan be made through my making a
     refund to the~College of the exact amount paid
     to me.as college 8alary for the daye when I am
     serving the War Department. Ray I requeet a
     ru&y from your offioe on the legality of euoh
              xn order to alarify a8 muoh as pOS8i-
     ble thi nature ot mu amoIntment with the War
     Department,1 IDIenim&ag       eert8in oonfldentlal
     doawmnt8whlah      I hope c\anb8 return8d ror my
     use later."
          Sactim 40 or Artfale %VI of the Constitutioncon-
taln8 the miairyt
           "#o parmn +a.ll hold or exerdse, at the
     881DLItime, mora tnan ona CrlvIloffice of ealolu-
     ment, except that of Jwtlc8 OS the Peaoe, County
     Ccwlssloner, Rotary Publie end Poetmuter, offi-
     cer OS tha National Ouard, the National Quard Re-
     caex!ve,and the Offleers Re8erve Corps o? the United
     States and enlisted men of the National Ouard, the
     National Guard Rmerve, and the OrguriaedReservea
     of the United Staten, ,@ndretired ol'fioersof the
     United States Anay, Navy, andUrIne Oorpa and re-
     tired Warrant 0??108r8, and rt#tfrcrdttnli8t6dn8n
     of the United Stator Amy, Navy, and Rarlne Corps,
     unless otherwise epeolallyprovidedherein. * * l)"
          Se&Ion 33 OS the seme Artlole dealeresr
          "The aaoounting offiaem4 of this State ahall
     neither draw nor pay a warrant upon the trea8uzv
     In Savor OS anfper8on, for salaryor aompen8atIon
     as agent, oiilaer or appointee,who holds at the
     mne time any other offloe or position of honor,
     trust, or profit, under thla State or the United
     zttt:"(J,,,
             exoept am presorlbed In this ConatItutIon.
Honorable William U. Whyburn - Page 3


          It would appear that the position of Chief,
Operations Analysis Section, with the U. 8. War Uepart-
ment Is an offiae of emolument. The appointment18 made
under Section 9 of the ~llltary AppropriationAct of 15444
for an Indefinite period. The appointee is required to
take an oath of office, and enter upon duties before any
psyaent of salary can be made. The salary stipulated is
$25.00 per biem. Moreover, the $utles of such Chief are
defined by law.
          These faute taken from the documents accompanying
your letter appear to present the Indicla of an office as
cmntra-dlstlngulshedfrcm a mere position of employment.
But whether suoh position be an offlao, we need not to de-
cide, since it alearly appears~that the same is a *position
of honor and trust" under the United States, withIn the
meaning of Section 33 of the Constitutionabove quoted.
          This   being true, it is clear the %nstltut1on for-
bids the drawing orpaymento? anywam?antuponthetreosurg
in favor o? yourself as President of the Texas Technologiti
College lshileyou eontlnue    to hold the position of Chle?,
Operations Analysl.8  Se&ion.


         ~l!he:e?fecto? Seotlon 33 is to:gorbId paymeet out
of the khte Treasury in such a&se, rather than to~imply a
vaoatlon of the office or position.
          Themany rulings by this deprrtamt hark baak to
an opinion by Mrst Assistant Attorney Oeneral Cureton,
later &Ie? Justice; holdln$ that LIeutenant Governor -8s
could not be paid his 6alary while he held at the 6ame time
the position of teachor of              (OpMOn8   o? Attor-
ney Cieneral,1.912-1914,p.
          The following resent opinions by this department
till1show the frequent reautinae o? the question, and will
also illustrate the respeutive faatual situations lnvolvedr
            No. O-   (atate Health Offloer and Speolrl Agent
Mau    of   Cemus  f
                  5"
          No. O-1421 (State Q??iaer and Deputy Game Warden
of U. 8. without pay);
          No. o-2388-~ (*ployee Livestoak Sanitary Camala-
81On and employee Predatory Axliasal
                                  DiVi8iOn Of the Bureau
of Biologleal MvI8lon of the U. S.)I
         No. O-2607 (Physiaianemployee of two State In-
stltutlons);
Honorable Wllllam N. Whyburn - Page 4


          No. O-2701 (Old Age Pension Investigatorsnd
member Board of Trustees of IndependentSahool District);
          No. O-2769 (State employee snd National Ouards-
man holding an offiae or position of trust in the active
seTviceI;
          No. O-3061 (An opthtiologist employee of State
,eleemos axy InstltutIonand also of Departnent Public
Welfare"r"
        1
          No. O-3788 (Mreator of DIvlsion Department of
Health and part-time employee of Division of Department
of Rducatlon);
          No. O-3693 Dlstrlet Attorney and inductee in
the Army of the U. S. I;
          No. O-3542 (State Representative'and    loyee of
                                               -5 ;
Federal Government as printer at Fort San Houston
         No. O-3335 State employee and dra?tee under
Selective service Act I;
           No. O-2991 (X8mber-d-o?     Mreetors, Texas
'%ille$e of Arts and Industries and County Superintendent
 of Public Instruotlon):
          No. O-3045 (Inwstlgtor for State Board of
Wedlcal RxawIners and spealal Ranger):
          No. O-4902 (Baployeeof State-owned oollege and
employee of a sahool district part-time basis)~
          No. O-4908 Rnployee'teacherof A. & R. College
and City CcmmlsslonerIf
          No. O-4562 (Head of Department of Oenetlcs,
A. Q n. College and member State Seed and Plsnt Roard)i

          No. O-4433 (Teachersof publla rchool system of
Lubbock County and praotlae teachers for Texas Technological
Oollege);
          No. O-4 3 (State Representativeand Induutee in
Anay of the U. S.Y-j
                  ;
          No. O-5107 (DistrictJudge snd Public Wember
Regional War Labor Board):
                                            -




HonorableWill.iam
                N. Whyburn- page 5


                                   to the Senate and
         No. O-5123 (ParlIementarlan
mployee of Old 0 AssistanceMvision, stat0 Departaent
               7 f
of Pub110Welfare
         No. O-5157 o&emberBoard of Re@ntS Texas State
Teacher8Collegesand employee.ofan independentsahool
distrlot);
          No. O-%3 (Pre8Ident,Collegeof Nine8 and Metal-
lurgy and PublicPanel Member of ReglonalWar Labor Roard)~
          No. O-5317 (StateRepresentative
                                        and employeeof
a State Department);
         No. O-5369 (Mreotor CountyHealth Unit and part-
time MedicalExaminerfor hospitalestablishedby State
Departmentof Health in cooperationwith the Federal
4loverment):
         No. O-5281 (Desnof the ilhitnrsity
                                          of Texas Dental
School and member State Board of Nealth)j
         No. O-5525 (Gonsultantto State.HeilthOfficer
and teauherin State Nedlcal School)$
         No. O-5608 (IDrployee
                            atate D8partmentof i@rI-
cultureandmember PpMcRoll Worm Cami8sion).
          Our ~oml~sIon In this case 18 supported by the
abow   opinions.
           The dooments mentionedby you am herewith
retuned.
                                   Very truly youm,
                             ATTORNX OWHRAL     08 TEXAS


                             Ilp    /a/   g;z zet
                                          Assistant
OS-m
Nnclosure
