                      EATTOWNEY               GENERAL.
                             OFTEXAS

PRICE DANIEL
ATTORNEY
      GENERAI.
                            September 22, 1948

  Hon. C.H. Cavness                Opiaion No. ,V-689
  state Auditor
  Austin, Texas                    Re:     Legislator  teaching at State
                                           supported ‘s~hoole effect   of
                                           Sections ‘33 and 40 of Article
  Dear Mr. Cevness :                       XVI of ,the Texas Constitution.
              You atete that your audit of a State college       reveals
  that a member of the Legislature      was employed as a member of
  the i’aoulty..   lie rorved as a faculty member durLng the two-year
  term for which he was elated       to the Lsgis’latur:ei but. only dur-
   tn its ~~remess. He was not so employed by the College ‘during
  Legislative    sessions.    &ring pert of such employtner.t, he was
  paid at the College out .of the State Treasury by warrant.           At c’;e
  time of your lette:?,     he was not being so paid, .bu,t was being paid
  aut of local funds or receipts      of the College.     Yoti Wibh to know
 ‘(1)whether elth,er or both such payments were legal;         and (2) If
  they were illegal,      vhat stepe should be taken.
            Ycur question is or;e arising out of one person’s hold-
  ing two places of employment under the State slmultatreously;
  i.e., legislator  and faculty member of a State-supgort.ed  coZ:Lega.
            Section    40 oi Article     XVI of the Texas Constitution
  reeds :
             ‘%o persol shell hold or exercise,. at the
      same time, more      than on’10civil office of esolzi-
      Irent.. . . . . . f,
            Section    33 of the same A:rticle    provides:
            “The eccolictiF& officers    of till3 State shall
      neither draw nor pay a warrant upon the Trsasury
      in favor of any pePc8o?:i, for salary or compsndetfon
      as agerAt, officer   or appoint,ea, vho holds at the
Ho&able         C. H. Cavncss.      Page 2 (V-689)



       mama time any other office or position of honor.
       trustor profit under this State or the United
       Skks , . :

              Section 40 above quoted has reference only k “of-
‘ficem~ ef the Skk.   It staks that, “No psraon shall bold. , .
more than one civil dffice , . .* There is a well rtcognloed dia-
tiuction botwee~person      who holds an “office* and a person who
is au employee. Brlifly skted, an officer exercises aome gov-
ernmental function: he is invested with some portion of the lov-
ereiputy. He is generally required to take aa oath, and a bond ia
frequently required. MS duties are generally fixed by law. Au
lemployee,” on the ether hand, hao such duties as are fixed by
contract or ayigwd    te him by an officer, be is Seaorally l ebjeet
to discharge at the will of t&e officer. See Loard v. Coma, 137
S.W.(Zd) 880, writ refuaed$ Knox v. gobnsonT?;iig.%CJEJ)T98,
writ refusedr Meecham on rubric-WCb.              1; and +kruey
Oemural’e Opinions V-303, V-308, V-325, and V-462.

          A Legislator unquertlonably bold@ a ctvil office of
emolument. Mr. JumttcoGreenwood of the Tcxam Supreme Court
in Terre11 2 King. 118Tax. 237, 14 S.W.(td)            786, wrote:

                Vha        office of rcpwmenktlw     or 8enmkr
       4s 9 offiT          of J~ouor, trust and profit under thts
       Iltpti’ . . .

            The La,gimlakr holda nucb uffleo during the entire
two-year term for which he was elected, evea though the Legia-
letire mey be ia memdoa for only~a portion 6f such period.

             A teacher or~profesoor of a cdlege, however, 1. nbt
a gtak ‘0fficer.s   He Is an employee. In an Attorney General’s
op&Aoa by C. M. Cur&on, lakr. Chief JustIce of our Supreme
Gear& a Lieutenant Governor desired to accept a position on the
fa&ty  of The University of Texas.2 Wfth reference to tire sk-
ka at a Iprafemer, the opinion reads:

1 For similar            rulings by the Attorney General.   sea opinioas.N6s.
  V-308,       o-6578,       and O-6458,

’ Report and C)pinion of the Attorney General, 1912-14,page 873.
Honorable C. H. Cavness,   Page 3 (V-689)



            l. . . a professor . , . secures his appoint-
      ment from the Board of Regents, with whom he
      contracts. . . . (He) take8 no oath. . . e x e c utes
      no bond, and is subject to discharge at any time.

              “We think It clear . . . that he could only
      be classed as an employee . . . and not aa an of-
      ricer,-3

              The prohibition of Section 40, above, is addressed to
the simultaneous holding of two ‘offices”.    It has been many times
con&rued not to prohibit the simultaneous boldfng of an office and
on employment under the Government. Thus it has been held ia
former opinions that, as a matter of pure eligibility, a Legislator
could also carve as a printer for the Federal Government (O-3542)1
aa an employee of the Federal Civil Service (o-5317); as a trustee
of a school district, the latter not being an office of emolument
(O-6269); as an executive officer for the Board of Vocational Edu-
cation (0-645g)r as an employee of a River Authority (O-6578); and
as executive secretary to a Board of Repeats (V-308). Similarly,
Section 40 does not prohibit the holding of two positions as an em-
ployee. Thus it has been held that a professor may also serve ns
city official (o-371); on the Merit Couucil of T.U.C.C. (O-2601)1 ‘as
a public school teacher (o-4902); on the Tire Ration Board (O-4458)1
and as a member of a State Seed and Plant Board (04562).

             Therefore, since the pernon in question occupies but
one “office,” he is not prohibited by Section 40 from also being
employed by a State-supported college. And. conversely, he may
nerve as Legislator while being so employed.

3 This is in accord with the weight of authority in other states.
  The annotation in 75 A&R.    1355 concludes: ‘The courts are
  almost unanimous in holding that the position of a teacher is
  that of employee, resting on contract.. And 14 GJ.S. 1356
  states: “*. . ordinarily a professor is not an officer, but OC-
  cupies merely a contractual position as an employee.” See
  also Butler v. Bd. of Regents, U. of Wisconsin (1873). 32 Wis.
  124; Hartfgan v. W. Vs. University (1901), 49 W. Va. 14, 38 S.
  E. 698; Talbott v. Public Service Comm. (1942). 291 Ky. 109,
  163 S.W.(td) 33: State v. Ford (1944). 116Moat. 190, 151P.(td)
  171; 55 Am. Jur. 9.
Honorable C. H. Cavnesr,          Page 4 (V-6891,



             However, even though tke same phrsod Inay legally
occupy both placca~ under Section 40, tba matter of his compensa-
tio pnr ~ents M lddttional question. Section 33 of Article XVI,
&owe rdirred    to, ipplioe not ealy to officer~m but to emphyeee.
11 provldear

              Vho AcCounting Officers of this Mate ahall
      noMar                    warrant on the Treamry
                   dr a w no r p a yl
      in favor of any pawn.     . , who holds at the same
      time any *er    offico *r poeitiou of honor, trust
      or profit &or mtc           or tke Udkd Statam. , .”

              Xt   by   boon ruiod my     thee   tbt   l   fwalty mwnbor
M 8 8tmteedl*se hoi&s “a po+on d bosmr, trustor profit undo?
&lo KtMo.e h &a oplnioa by Cue*   obqvo reforrod to, it was
bdd thatif the Lhtoaaxt    Owomor Mayor accepted tie position
of profemor d jouraallrm.at Tlta Univermity of Texar, he could
k wd for mdtber job. Ufmilarly, a profwror of the Univerrity
ooubd mot bo paid from W Tnuory      for Leglrhtiw  duthr while
tuobtng in tha Auetia Publia khouxo (oplldolr V-325). T h e lme
he& ,boen kid with refaroace to the dual eploymeat   of faculty
ahoers     d TOXM A. I M#, Toxu Too&i , and the Dental Col-
hge , the Medical College , and TOW 4. k 18

            Bimilarly, under We provision, it has been ruled that,
while a Legislator could be otheiwlao leplslly employed, he could
not be paid by warrant on tke Treasury while occupying a porltioa
ae Executive 8ecretary to a Board of Regenta (V-308)4 or while
lervlq l6 Executive Officer for tke &ate Board of Vocational

’ Where muchfaculty mmnbera also rerred on the Merit Council
  d the T.U.Q.G. (0-g681); aa a member of ,State Seed and Plant
  Board (O-4562)1 M h member d Cotton llerearch    Committee
  ~~4~~~    or a8 a mmmher of Stab Pink Woolworm Committee
    -     .

’ College faculty member and high lchool teacher in Lubbock
  (O-4962 and O-4433).

’ Dean of the College And member of State Board of Health (O-5281),
7
  Professor and Consultant of a State Venereal Disease Clinic.
  (O-5525).

’ Professor        and trustee of a school district.   (O-2991).
Honorable        C. H. Cavnesm,, Puge 5 (V-689)




Education (0-6455); or while holding a position with the Federal
Civil Service (0-53It)r or the Psderal Typhus Control (0-7813)s
or aa a U. 9. Government printer (O-3542).

           The Legidator, therefore, was not entitled to be paid
hy warmat from the Treasury for rervices at tbe State college,
mm&r &cuoll33.

           What haa heretofare bea written has dealt only with
M pyeaaats to the faculty member by warrant on tbe State Treus-
-9  ‘Irrlortber 8mkrrlut the legal 8llr8tion ia with referenca to
pw       Smedeby other thm St&e wmraats; i.e., payment Out of
loaxfads.

                  A prrtrolpd Kutiou 33 ia repeated here lo that     itr
lp OeKXa
      wOr dlu
            with
              gr a fo r to
                        uscue
                            c dir
                              h   tidc
                                     muy
                                       tio
                                        b eno
                                           a ted,
If &I

                  lThs Aocauatiq   Offiuro af thie State ‘shall
          mt        draw nor pay a wurrant upoa the Tre8sury..      .-

                  The puMbiUa     Lo directed 8t payment8 out of the State
 hasay    oo warrate          hued nnd paid by tha State*s Accounting
OClleer& For re8momwkat kfmwntmthe Legislature, it lmr pro*
vi&d at    aacei~to eoileeted at the various colleges may be retained
10~alXyby the roikger 11 baakm of their owu ebooainp. Such money
im rot nqnired C be seat to ‘Anatin to the State Treasury.  The stat-
atea wltb rhrau     ti the deposit of money in the Treasury and its
ritkdrrti   tkerdrom have not kern made applicable to such locally
rotdood        fmuis, a8 W&l b lwreiaftor     set 06

                  Tkore MO may       rtrktre witk roferare
                                                   to how md
wken w8mnto  may be drawa a the Treuawy.      A college, however,
lo uu~rined C cdlut.  retuin. end expend iti local fmmds. Thus
Section 1 of Article t654d provides that        the governing boards of the
v8rious ~AIoo~~:

                 *. . . aaap ret&b    control respectively of the
          to-8          aw  of mosey collected ut each of eaid
          mmr8liaaYWGiad           la carrying out the functions
          of an eduuaUaaaI l~titutlon~ ouch a@ fuudm collected
          frem 6tudont fee@ of all kinds; charges for use of
          rooma and dormitories: receipts from mealm, csfes
Hoaorable   C. H. Cavness. Page 6 (V-689)



     iad cafetartis; fees on deposit refundable to stu-
     dents under certain conditions; receipts from
     school athletic activittos; income from studont
     publications or otbat atudent activities; receipts
     from sale of publication products and miscclla-
     aeoas rupplles aud equipmonb students’ volua-
     tary doposits of money with eaid schools for safe
     koepingl all other foos and local institutional in-
     come of a strictly local nature arising out of hid
     by virtue of the educational activities. or reaeirch
     or demonstration carried oa by each and all of
     said neveral achoola.

             -Sec. 2. Tbo governing boards of the ra-
      speetive lastitutions . ; . are authoriaed to select
      depoaibry   basks as places of deposit of all funda
      of the ldud and character named in Section One 6. .v

            But the same Article further provides what money sbnll
ba deposited im the Treasury; Le.. not be retained loeallyt

             Vbe provisions of this Act shali not apply
      to any inCOrn   derived from the Permanent Fund
      of the University of Texas, but all income derived
      from the Permanent Fund of the University of Texan
      and all incomo from the two million acres of land
      sot apart to the Uaivorsity of Texas by the Consti-
      tutlon and by the Act of 1883, &all be deposited in
      the State Treasury and paid out oa Comptroller’s
      warrants aa is kow prcivided~by law. . . . .

             Similar provIsions aro carried in the Act ~appropriat-
Ing funds for the colleges. See Acts 50th Leg. (1947), Ch. 339 at
page 669.a

8 See also the Appropriations Act for Public Junior Colleges which
  operato largely out of local funds. It provides: ‘There shall be
  appropriated biennia’lly from money in the Stato Treasury.   , . aa
  amount sufficient to supplement local funds in the proper support.
  maintenance. operation and improvement of tho Public Junior
  Colleges of Texas . . .- Acts 50th Leg. (1947), Ch. 346. p. 685.
Honoralto C.    li.   Cavnera.   Page   7 (V-649)



             An lx a mina M ofo aother &atutes furthor ahowe that
tke Legislature did not contemplate that local institutional re-
ceipte should be deposited in the State Treasury.    It is provided
tht the StaW Treasurer shall racoive ‘all money paid into the
Treasury   and give a receipt therefor. Art. 4370. By Article
4374, all meaey recrivrd   by the Troasuror shall be kept,in tbe
deo and vaulb of the Treasury. Local funds, ia contrast, may
be depoaibd Ir a local bask. Article 4371 provides that the Treaa-
wet shall eou8toreign lud pay all warrarits.drawa on tho Treaa-
wy, axd i&t xo money shall be pdd out of the Treasury        except
Orrnrrukta    d tlw Comptroller.    Article 4374 designates the State
Comptroller aa ck official who lhall.‘draw warrank on the Trear-
WY** Local fuada may be spent by the colleges witbout the lsrist-
nae of the Comptroller a? Traaouror.       Article 4372 provides that
the Treaawer    lUl keep aecounta of receipti and expenditures of
UIO mosy of tke Treasury.      aut Article 2654d provides that the
governing hoarda ef the local institutions shall keop account of
their receipt& .Articlos 4382 and 4390 requiro the Troasuror to
k eep l ww~aat eegibtsr and c8ah balance book. .Local fund ox-
peu4ltwea wa wt listed thsroin.         ~

             It ir tkrafore apparent that tho Legislature hr anado
a diotisction betweea fuadr which aro to be placed in the Treasury
and expended only on warrants on the Treasury, and local fuadr.
Saction  40 proMMta only psym’enta out of tho Traaowy wwarranb

            ‘The Accountihg Officer8 of this State shall
      withar dr8w nor pay a warrant on the Troaswy..     ,*

               A comporrble      lituatioa arose in 1942 undir a former
Attwxey      Ckaerd,  whero the qaostioa was raised an to tbe payment
ef a teacher    at a &ate Junior College whore such teacher limulta-
uoaely held the dice        of @uaty     School Trwtee.   That opiaioa
(O-4&6) cordudeo:

             “You state in pur latter that Mr. Bointnott,
      one of the County School Trustees.   is a teacher at
      Lamar Junior College. His position as a toacher
      ia clearly not an office, and Section 40 of Article
      16 of our Constitution would not there apply. It ia
      our opinion that Section 33 of Article 16 of our
      State Constitution is not applicable to this situa-
      tton because no accounting officer of this State
                                                            .




Hoaorablo   C. Xi. Csvnaee, Page B (V-689)



      draws or pays a warrant on tho State Treasury
      in favor of Mr. Bointnott as he receive8 his teach-
      ing SbWy   from the funds of MIO school di5kiCt
      which employee him. , . .*

             The same result wee reached whom a Uaiversity of
Texas pzofoesor    also taught in AusMa  High School. He could not
be paid by warrant    OA the Treasury for his Uaiwreif/ work. Byt
with rcforenco to his high school pay, opinion V-325 reads:

             “This section (33) pertains only to the au-
      tbority of the accounting officers of the State to
      draw or pay a warrant upon the Treasury, and
      has nothing wbatevor   to do with tbe authority of
      a city as a school district to pay the salaries of
      itm kacbers.”


             The same result was roached 1~ O~~A~OA O-5087,
where a County Treasurer   aleo lervod as principal of a Coralcane
high lchool.

             Similarly, where tho question wan as to tho compeara-
tioa of a &gislator,   should he accept simultaneous emptoymeat
witha Texas Rivor Authority (whose salaries were not paid from
the Troaewy). it was held that:

            +. . . he would not be permitted ta have a
      warrant issued to him for compensation as Rep-
      raeeatative, though ho would be allowed to draw
      bie pay for the position held under tHe giver Au-
      thor1ty.e (O-6578)

             We therefore hold that the person here involved may
be paid from local ,funde of the College for his faculty services
during the Legislative recess. But he may not be paid for eerv-
ices at the College by warrant on the State Treasury while holding
ths office of Legislator, even during its recess.   The payments to
him from the Treasury for faculty duties were therefore wrong-
ful and tho State is entitled to recover such money.

            Since he was not being paid as a Legislator during the
timo he was omployed at the College; and since ho was not em-
ployed at the College during tha Legislative 505~510~~funds paid to
him as a Legislator are not ihvolved.
Honorable C. H. Cavness,    Page 9 (V-689)




             Before deciding what legal action should bo        tsken TV
 recover such money, it would seem that the Legislator          should bo
 given the opportunity to voluntarily repay such sum. If        he rbrld
 refuse. and you so’inform us, we will proceed with that        portion
.of your opinion request.




              One person may hold the office of Legislator
       and an employmont as a faculty member of a State
       college. However. he may not be paid by warrant
       on the Treasury for aitber place while holding Wth.
      But, if the Legisl&ter teacbos during the Logirla-
       Uv8 recess. he may ,bs paid by the College, out of
      ‘local institutio~l receipts of such institution, the
       Constitutional inhibition relating only to paymenta
       by the State% l     ccountfng officer* by warrant on the
       Treasury.    Coiut.    of Tcxao, Ark XVI! SM. 33 and
       40.

                                          Youis very   truly,

                                 ATTORNEYGENERALOFTEXAS



                                         #wz.~’ ,,
                                 d     oe R. Craanhill
                                      Executive Assistant
