Mr. James H. Garner            Opinion No. W-804
State Coordinator
Division of Defense &         Re:   Constitutionality of the
 Disaster Relief                    provisions of Section 4
Austin, Texas                       and Section 6 of Division
                                    of Defense and Disaster
                                    Relief Model City Ordin-
                                    ance for Municipal Civil
Dear Mr. Garner:                    Defense.
        Your letter dated December 17, 1959, requests an
opinion of this office on the constitutionality of Section
4 and Section 6 of your Model City Ordinance for Municipal
Civil Defense,
        Section 1 of the Model City Ordinance creates a
Municipal
-         Civil Defense and Disaster Relief Committee. It
f'urtnerstates that the mayor of the city shall serve as
chairman of this Committee and shall also be known as Muni-
cipal Defense Coordinator of the city.
        The two sections of which we are concerned are:
             "Section 4. The office of Municipal
       Defense Coordinator is hereby created.
       The Municipal Defense Coordinator shall
       have the authority to request the declara-
       tion of the existence of an emergency by
       the City Council or by higher authority.
       In the event it is deemed necessary to de-
       clare  the existence of an emergency without
       delay, the Coordinator may, if the City
       Council is not in session, do so, but such
       action shall be subject to confirmation by
       the City Council at its next meeting."
             "Section 6. Each person serving as
        a member of the Municipal Civil Defense
        and Disaster Relief Committee, or as an
        officer, employee, or volunteer In any
        capacity in the Municipal Civil Defense
Mr. James H. Garner, page 2 (~~-804)


       and Disaster Relief Organization created
       by resolution or directive pursuant to the
       authority herein conferred, shall, prior
       to assuming their duty or duties, take an
       oath which shall be substantially as fol-
       lows:
            (1I*           do solemnly swear (or
       affirm) ihat I iii support and defend the
       Constitution ofWthe United States and the
       Constitutionof the State of Texas,against
       all enemies, foreign and domestic; that I
       will bear true falth and allegiance to the
       same; that I take this obligation freely,
       without any mental reservation or purpose
       of evasion; and that I will well and faith-
       fully discharge the duties upon which I am
       about to enter. And I do forever swear (or
       affirm) that I do not advocate, nor am I a
       member or an affiliate of any political party
       or organization, group or combination of per-
       sonsthat advocates the overthrow of the
       Government of the United States or of this
       State by force or violence; and that during
       such time as I am a member of the County Civil
       Defense and Disaster RelLef Committee of the
       County of           I will not advocate nor
       become a member or an affiliate of any organi-
       zation, group, or combination of persons or
       of any political party that advocates the
       overthrow of the Government of the United
       States or of this State by force or violence.'"
        The question of the constitutionality of these two
Sections arises under Section 40 of Article XVI of the Texas
Constitution because of the possibility of the Mayor as Muni-
cipal Defense Coordinator, or any other appointee in the pro-
gram, being classified as holding a public office.
        Section 40 of Article XVI of the Constitution of
Texas reads in part as follows:
             "No person shall hold or exercise at
        the same time, more than one civil office
        of emolument, . . .'
Mr. James H. Garner, page 3 (~~-804).


        The definition given by Black's Law Dictionary,
Fourth Edition, page 616, defines "emolument" as the profit
arising from office or employment; that which is received
as a compensation for services, or which is annexed to the
possession of office as salary, fees and perquisites; advan-
tage, gain, public or private. Webster's New International
Dictionary: Any perquisite, advantage, profit or gain aris-
ing from the possession of an office.
        One Texas case has defined the term "emolument" as
a pecuniary profit, gain or advantage. Irwin v. State, 177
S.W.2d 970 (1944).
        The office of mayor is a civil office. If the law.,
by city ordinance or otherwise, authorizes a salary or other
pecuniary benefit to the office holder, then it is deter-
mined to be a civil office of emolument.
        The performance of the duties of Municipal Defense
Coordinator Is not the holding of an office of emolument.
There is nothing in the Model City Ordinance that grants
compensation to the Municipal Defense Coordinator. The func-
tions of Municipal Defense Coordinator would in effect only
be additional duties to be performed by the Mayor in the
execution of the duties of his office.
        Therefore, since the Mayor of a city in holding the
office of mayor and in acting as Municipal Defense Coordina-
tor would not be holding more than one "civil office of emolu-
ment," same would not be prohibited by Section 40 of Article
XVI of the Constitution of Texas.
        In addition, we think there is no common law incom-
patibility involved in the Mayor's acting as Municipal De-
fense Coordinator.
                           SUMMARY
             The Mayor of a municipality may at
             the same time serve as the Municipal
             Defense Coordinator of that City.
                               Yours   very truly,
                               WILL WILSON



JMF:mfh                       gl
Mr. James H. Garner, page 4 (~~-804).


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman


Charles D. Cabaniss
Tom I. McFarling
J. Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
