                                             ENERAE




Honorable Clifford B. Jones, Resident
Texas Technologioal College
Lubbock, Texas

Dear Sirr                          Opinion Number O-4902
                                   Re: mother State College may
                                        employ part-time music
                                        instructor who mill be
                                        employed on part-time basis
                                        by school district at same
                                        time.

          piehave received your letter of recent date which we quote,
in part, a* follcssr

          "A rather heavy enrollment in our Rusio Department
    (Band) requires an additional part-time instructor. A
    simplification of the matter, in keeping with economy indi-
    cates the advisability of employing a part-time instructor.

         "The Lubbock Public Schools are confronted with 8
   similar situation, and the problem could be solved if the
   said Public Schools and Texas Teohnological College employ
   a man who is available, they to use him for a portion of
   the time and we to use him for a portion of the time at
   en expense to us of (600. There would be no overlapping
   with respect to services~ that is to say, we would not be
   paying him at a time when he was engaged with their instruc-
   tion, and the converse of course would be true1 namely that
   they would not be paying him when he was engaged here.

          "Will you be kind enough to advise us as promptly as
    possible whether we have the legal right to engage this
    instructor upon a part-time basis as outlined?"

          A school teacher is not a public officer. Martin v. Fisher,
291 P. 2761 Leymel v. Johnson, 288 P. 659; 56 C. J. 382: 37 Tax. Jur.
1035; Opinions No. O-4669, No. O-4628, and O-371. Therefore, Section
40 of Article XVI, Constitution of Texas, which prohibits the holding
of more than one civil office of emolument, is not applicable to the
situation under aonsideration. You state that there would be no over-
lapping of services, and we know of no reason why the duties of the
individual as part-time instructor in the college should in any way
conflict or be inoom ;;;;.",tmithhis duties as part-time instructor of
music in the school 5         .
Honorable Clifford B. Jones, page 2             O-4902



          However, we direct your attention to the provisions of Section
33 of Article XVI, Constitution of Texas. Said section provides, in
part, as followsi

         "The accounting officers of this State shall neither
   draw nor pay a warrant upon the Treasury in favor of any
   person, for salary or compensation a* agent, officer or
   appointee, who holds at the same time any other office or
   position of honor, trust or profit, under this State or
   the United States, except as prescribed in this Constitution."

           The construction of Section 33 was involved in Opinion No.
O-2607.   We quote the following from said opinion:

         "It is clear that this section does not seek to
   prohibit the serving of the State by one individual in
   more than one capaaity. The provision addresses itself
   only to the matter of compensation. Thus, a man may hold
   two offices, or an office and a position of honor and   .
   trust under the State, if no ocmpenaatiom attaohes to
   either place. &t if he holds an office, or is an agent
   or appointee, and to such place ccmpensation attaches, he
   may not be paid for services rendered in that oapacity
   during the period of time that he holds another position
   of honor or trust under the State or the United States.
   From this general statement as to what the se&ion does
   and does not prohibit, we gather the general policy
   embodied therein. This policy seams obviously to ba that
   no person should receive compensation from the State for
   services to be rendered it, when during the time such
   compensation is to be earned such person, by accepting and
   holding another position under the State or the United
   States, has obligated himself to render 3ervices in ccn-
   nectionwith the latter position, so that he may not render
   full value in the first capacity for the compensation whioh
   the State has agreed to pay. So construed, we find that the
   Section is but one of the many in the Constitution seeking
   to place every conceivable safeguard about the expenditure
   of State moneys. So construed, this Section seeks to avoid
   even the possibility that the State may not receive a full
   quid pro quo for expenditures by way of compensation for
   services to be rendered in one capacity, by reason of the
   person serving in that capacity placing himself in such a
   position that he may be tempted to neglect the duties of
   the one place for the responsibilities of the other.

           "Ana,lysed,Article 16, Section 33, provides thatr

          ".An(a) offioer, (b) agent, or (c) appointee for
    salary or compensation is not entitled to receive payment
    from the accounting offioers of the State of such compensation
Honorable Clifford 8. Janus, r<i.?c
                                  :.           O-4902



    if, during the same time that he holds the place to.which
    such salary or compensation attaches, he also holds any
    other office or positions of (a) honor, (b) trust, or (0)
    profit."

          There cen be no doubt that an instructor in a Stete supported
college'is "agent. officer, or appointee", end although we have hereto-
fore stated that a school teacher does not hold en office, we are of
the opinion that he holds a "position of honor. trust or profit".

          In view of the foregoing you are respectfully advised thet e
person may legelly serve es pert-time instructor in a State supported
college end et the same time serve es pert-time instructor in e school
distriot where the duties attached to each position do not overlap end
ere in no way inconsistent3 however, in doing so he forfeits all right
to any salary or compensation to which he might heve been ontitled es
instructor in the college.

          This conclusion is consistent with those announced in previous
opinions of this department with reference to Section 33 of Article XVI.
In Opinion No. O-1422 it ww held that e person hay simultaneously serve
on the board of trustees of en independent school district end on the
board of directors of the Texas College of Arts end Industries, but that
in doing so he forfeits all right to compensation to which he might have
been entitled es director of the college. It was held in Opinion No.
O-2528 that while there was nothing to prohibit an inspector for the
Texas Liquor Control Board from serving also es trustee of en independent
school district, he would be entitled to no compensation es inspector
for the Liquor Control Board if he served in both capacities. In
Opinion No. O-2607 it was held that if a physician employed on e part-
time basis by a State eleemosynary institution accepts end holds a
similar place in another eleemosynary institution at the seme time, he
is entitled to no snlary during the period of time thet both positions
are held.

          You state in your letter of request that the practice of
employing pert-time instruotors, es outlined, is being followed by various
independent sohool districts. Ge think it proper to point cut that the
inhibition contained in Section 33 of Article XVI is applicable only to
the State aacounting officers. It would not prevent the accounting of-
ficers of e school district from paying an instructor of the district
for services rendered. However, the State eccounting officers drew end
pay the salary warrant issued to en instructor of e State supported
college. Therefore, the inhibition would prevent the State ecoOunting
officers from either drawing or paying e warrant in favor of en in-
struotor for salary or compensation where such instructor holds et the
same time sny other position of honor, profit, or trust as specified in
the Constitution.

          This opinion passes only on the authorit of the collsge to
employ a part-time instructor under the fact situ*x ion as outlined. It
                                                                         -.   -




Honorable Clifford 9. Jones. page 4                  O-4902



pesses neither directly nor indireotly on the quest!on whether there
are funds appropriated by the Legisleture from which a pert-tine in-
structor could be paid.

                                                Very truly yours

                                           ATTORNEY C;NWAI,,OF 1'XSAS



                                                By s/George 5. Spark,s
                                                     Goorps i;'.
                                                               Sparks
                                                            Ass~~stant


\PPROVED OCT. 13, 1942
 s/Gerald C. Mann
ATTOFNEY GENERAL OF TFXiaS

Approved Opinion Comittee    Py WY   Cheirmen
