         TEE    ATTORNEY           GESEHAL
                     OP    TEXAS




Ronarable Hohghton Rromnlee, Chairmen
Committee on Governor's Nominations
The Senate
Austin, Texas
Dear Senator Brownlee:    Opinion No. Q-5157
                          Re: mether or not the fact that
                              Mr. Mills is an employee of
                              the Houston Independent
                              School Distriot disqualiflee
                              him from holding membership
                              on the Board of Regents of
                              the State Teaohers' College.
          we-have your request of Xaroh 23, 1943, as follma:
          "At the request of the Senate of Texas and
     as Chairman of the Committee on Governor's Nomi-
     nations, I am directed to submit to you the fol-
     lowing question:
          WC. Hubert L. Kills has been appointed by
     the Governor as a member OS the Board of Regents
     of the State Teachers Colleges. Mr. Mills is an
     employee of the Houston Independent Schools,
     serving in the capacity of Business Ranager and
     not as teacher.
          "Does the fact that Mr. k~8.11~
                                        is an employee
     of the Eouston Independent School District dis-
     qualify him from holding both that employment and
     membershi on the doard of Regents of the State
     Teachers E olleges?s
           Seotion 40 of Article -m of the Constitutionwith
respect to dual office-holdingis of no importance in the con-
sideration of your question. That Section declares that "No
person shall hold or eX8rCis8*8;ttthe    same time, more than one
civil Orrice  of emolument,          , with certain exceptions
not pertinent hers.
          It has been uniformly held that where a person, hold-
ing one oivil office 0r emolument, acaepts another civil offioa
of emolument,he thereby Ipso faoto vacates the first orrioe
upon entering into the second. So that, Section 40 does not
prevent the appointment of Rr. Mills, or his acceptacne, of the
position as a manber of the Board of Regents of State Teachers'
Colleges, in any event.
          Section 33 of Article XVI of the Constitution deals
a




    Hon. Houghton Brownlee- page 2

    with a quite similar situation, but it arrsots only the right
    of compensation by the State. That Section deolares:
              "The aooounting orriaars or this State
         shall neither draw nor pay a warrant upon the
         treasury in favor 0r any person, for salary
         or compensationas agent, officer or appointee,
         who holds at the same time any other oifioe or
         position or honor, trust or profit, under this
         State or the United States, except as aOO0idbOa
         in thia Oonstitution.*
                The situation presented by you does not come   wlthin
    any at   such eroeptiona.
              It will be noticed this Section does not forbid           the
    holding or such dual offioes or positions or honor, trust           or
    profit, under the State or the United States, but it does           tor-
    bid payment by warrant upon the treasury in favor of suah           per-
    son for sulary or oompensationwhatsoever.
              The prohibition of pepment in a oase coming within
    that Section applies to both positions. Suoh a person oan
    draw pay from the State treasury for neither of suoh positions.
    (See Opinion No. O-5123, oopy herewith).
              So that, answering your question specirlaallg,we beg
    to advise that the fact that Mr. Mills Is an employee of the
    Houston Independent Sohool Dlstrlot does not diaqualiry him
    from holding membership on the Board of Regents of the State
    Teachers' Colleges.
              Employment by the Houeton Independent,School Dis-
    trict is not an offlce, but it la a.position ti honor, trust,
    and probably of profit; but the position of membership on the
    Board of Regents of the State Teaohers' Colleges is an
    orrice, under the law, within the meaning of Section 33,
    So that, while there is nothing forbidding Mr. Mills to
    hgld and exeroiss both the position of employee and the
    orriae of member of the Board of Regents at the same time,
    but in no avent nay the aooountlng officers or the State
    issue or pay a warrant to him as salary or compensation
    whatsoever as a member of such Board of Regents.
                                              Very truly yours
                                         ATTCRNE!fG?6NBRfiOF TEXAS
                                         By   /a/ Ooie Spaer
         .                                         Assistant
    i%'k%ibMAR. 26 1943
    /a/ Gerald C. MaAn           AE'ROVRDOPIRIOaCObMlTKS
    ATTORNEY GENERAL OFTE?XS         BY BWB, Chairman
