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Honorable Byron Tunnel1
Speaker      ‘.
House of Representatives
Austin, Texan

                                           Re:   Compensation of a Member
                                                 of the House of Repreeent-
                                                 atlves who Is also employed
Dear Mr. Tunnell:                                by the Toledo Bend ProJect.
       Your request     for   an opinion     reads ae followe:
             “I request that you advise me whether
       or hot I can legally  authorize expenditure6
       of monies to and for a member of the Houae of
       Representatives  under the facts eet out.
             “The Honorable Sam F. Colllne ‘of Newton,
       Texas, Representative,   Dletrlct  7, conelstl~
       of Jasper, Newton, Tyler cind Sabine Counties,
       was employed by the Toledo Bend Project effec-
       tive day 31, 1963. At that time, In an abun-
       dance of caution,   Repreeentatlve  Collins request-
       ed that he be taken off the monthly House of
       Representative8   Member’s payroll and since which
       time he has not’ received his monthly compensation.
                                                                     .
              “I reiuest      that you advlee     me:
              “1 .   Doea Representative   Coll#iet  employment
                     preclude him from receiving    the Coneti-
                     tutlonal  salary of ‘a member of the House,
                     of Rtpresentativee?
              “2.    If your.anew& to &eetlon      no. 1 is In
                     the negative;   can Representative‘ Collins
                     now be paid for the montha he haa not re-
                     ceived such’ealary   and if 80; .can he be
                     p&Id In a lump sum?
              "3. If your answer to que.stion’ no. 1 ie In
                     the arflrmatlve,       does Representative
                                                      ..
                                        -1065-
Hon. E!yron Tunnell,      page 2 (C221)


                    Colllne~.employment  preclude him from
                    using Houee Contingent Expense funds
                    during the ‘Interim?
               “4. Representative    Collins Is also a mem-
                    ber of the Texas Leglelatlve    Council.
                    Ii your anewer to quaetlon no.’ 1 ia In
                    the affirmative,   can Repreeentatlve
                    Colllne be relmbure,ed within the Statu-
                    torypmount for expeneee’ Incurred in
                    cons&tlon    with hi8 Councll~actlvltlee?”
         Representative   Colllne was employed a8 a Project Super-
visor and hle dutiee conslet o? the gqneral eupervlelon            of the
Toledo Bend Project.     .The Toledo Bend Project Is a joint effort
of the Sablne Rlver Authority of Texae and the Sablne River Au-
thority,   State of Loulelanar~ for the building and operation of
a damand reeervolr      project on the Sablne~ River at Toledo Bend.
This joint effort’ie     pursuant to an agreement entered Into by the
Sablne River Authority of Texas and the Sablne River Authority,
State-of   Louisiana on the 6th day of July, 1961, and supplemental
agreement entered Into on the 5th day of April,          1962.    The Sablne
River Authority of Texas le “a governmental agency o’f the State of
Texas, a body politic      and corporate,    vested with all authority as
 such under the C.onetltutlon and.lawe of the State” created by the
provlelone   of Article    8280-133, Vernon18 Civil Statutes.         Therefore,
under the facts eubmltted~by you      ,   Representative  Collins    Is an em-
‘ployee of an agency of the State.
         Section   40 OS Article    XVI of the Conetltutlon     of Texas pro-
vides:
               “No person shall hold or exercise,  at the same
         time, more than one Civil Office of emolument, ex-
         cept . . .‘I (Exceptions not applicable).
         Sectlon   33   of~'Artfcle XVI'o‘r the Coi&t’~tikldn’ O? Texas pro-
vides:
               “The Accounting Officers      of this State shall
         neither draw nor pay a warrant upon the”Treasury in
         favdr of any p&eon for salary or compensation as
         agent, officer    or appointee , who holds at the same
         tlmi any other office     or position   or honor’, tNst
         or profit,   under this. State of the United States,
         except as prescribed     in this Constitution.     :. . .I’
         (Exceptlone    not applicable).
           In Attorney @eneralle Opinion V-308’(1947), It was held that
although     a Member of the Leglslature’may accept employment’ae
                                    -1066-
Hon. &von   Bunnell,   page 3 (C-221)


Executive Secretary     of the Board of Regents of the Texas State
Teachers Colleges,     the Comptroller,would not be atithorlzed to
Issue a warrant In     payment of compe~eatlon. In discussing   the
dlfference.between     an officer and an employee, it was pointed                *
out In this opinion:
              11 . . . An !offlcer’      exercises    some govern-
       me,ntal funct&n;       he la Snveeted with some pbrtlon
       of the sovereignty.        A public office Is a right,         au-
       thority    and duty created and conferred          by law, the
       tenure of which Is not transient,           occasional,     or ln-
       cldental.      Among the usual criteria        given for deter-
       mining whether an employment Is a publlc office               or not,
       are’the    requirements of an offlclal         oath and bond;
        that the powers are granted and conferred by law and
       not by‘ contract.       The ‘officer’     Is -generally answer-
       able for misfeasance In office,,          and Is responsible      for
        the acts of his ‘employees.’          Eimployment, on the other
       hand, Is established-by        contract.      It Involved per-
        forming such duties as are prescribed            by .the employ-
        ing agent.      The ‘employee’ Is often subject to dls-
        charge at the will of the ‘offleer’           to whom he Is
       reeDonsible.       These matters are full-v discussed In
        Loard v.w,
       -~                   137 S.W. (2cl.880,     w&t refused;      Knox
       ~S$.ii41              S.W. (2d) 698 , writ refused;       Meek,
                    ?icere,   Ch. i; 42 Am.Jur.,Fubllc~Offlcere,          Sec-
        tlons 2-16: 14 Tex.Jur..        kQbllc Of'flcers.     Sections 2-
        4; and In Gotatlons         53 A.L.R. 595, 93 A.L.R. 333.
        140 A.L.R. 1076."
          In Attorney Oeneral’e Opinion R-972 (1947), it was held that
a legislator     could not receive pay as a’Member of the Legislature
If such person was the executive secretary of a county retirement
system, holding that, while such position         does not constitute   an
Office within the meaning of Section 40 of Article XVI of the Con-
stitution    of Texas, such position    Is one of,honor,    trust or profit
under this State, within the meaning of Section 33 of Article           XVI
of the Constitution      of Texas.   A similar conclusion    was reached .ln
Attorney Oeneralte Opinion O-6578 (1945) lhvolvlng membershlp In
the House of Represenatlves       and at the same time, employment with a
River Authority.       Therefore,  It Is our opinion that under the facts
eubmltted in your request, Repreeentatlve         Colllne~ position   with
the Toledo Bend Project Is not an office         within the meaning of Sec-
tion 40 of Artltile'i(VI     of the Constitution   of Texas; rather, his
position    is that of an employee.
        While such poeltlon does not constitute an office,   It IS
one of honor, trust or profit under this State.   The position
carries with It em~lumenteof employment. !lhe Toledo Rend Prod-
ect calls for an expenditure of large sums of public monies.
                                   -1067-
Hon. Byron Tunnell,   p&e   4 (C-221)


    . i You are therefore    advised that; uhder the faote bubmlt-
ted, -RepFeeentative’ Colli’rib’ employment preoluiltij him, ~whlle
so emfilioged, Trti receiving   his salary as a Member of the House
o? Repreeentativi%3.
        In vlen sf.our’anewer   to’gotir   question   no. 1, It Is not
necessary to answer, question   no. 2.
      ” In answer to question no. ,3; it. ta’ not&d that.Sdction     33
of ArtioU ‘XvIjof ,the Constitution      of Texas is etrlotl~  limited
to a’warrkht Upon the Treasury in favor of.any peraon ‘for sale;-
ry br’oimp&ieatlon    as agent, offloer.or    appointee” And therefore
doe&not apply to~the’laeuanoe~of       warranter for the payment of ex-
penses to which such person would otherwise be ent1tU.d..         mere-
fore, .you-.&re advised that ,Representatlve    Collins’ einployment
dde’e~liot preclude he from using House contingent       expense funds
during the Interin:
       In answer to your fourth question,  you are likewise advie-
ed that Representative  Collins may be reimbursed within the atatw-
tOry amount for expense8 Incurred In connection with his actlvl-
ties as a member of the Texas Legislative   Council.
                                SUMMARY
        Although a Member of the Legislature       la ell lble
        to accept an employment (Project       Supervisor 7 on the
        Toledo Bend Project,    a joint effort    of the Sablne
        River Authority of Texas and the Sablne River Au-
      ’ thoritg,  &ate of.Loulslana,       he Is not eligible,
        while 40 employed, to receive his salary as a Member
        of the Legislature,    In view of the provisions       of
        Sedtlon 33 of Article    XVI of~the Conatltutlon       of
        Teliaa . Such prohibition,    however, does not pre-
        clude.hlm from receiving reimbursementfor expenses
        as a Member of the Legislature       or as a member of
        the Texas LegleZatlve     Council.
                                    Yours very truly,
                                    WAQGORER CARR
                                    Attorney General


                                           John Reeves~
 JR:ms



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Hon. Byron Bunnell,page 5 (C-221)


APPROVED;
OPINIONCoMMI'ITgE
W. V. QepPert,Chalrmfq
Lloyd -in
J. S. Bra&ewe11
HaloolmL. Qlok
APPROVgDFaRkATX4U4EYOBtlBRAL
BYi HowardW. Maps




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