                          November 23, 1965

Honorable W. W. Heath,         Opinion No. C-550
Chairman
Board of Regents.             Re: Whether service on a %tate
The University of Texas           or Federal board or com-
Austin, Texas                     mission by a'member of the
                                  faculty or administration
                                  of The University of Texas
                                  Is in violation of the common
                                  law rule of "lncompatIbIllty"
                                  or in vl6latlon of either
                                  Section 12, 33 or 40 of
                                  Article 16 of the Texas Con-
                                  stitution, where the Board
                                 ~of Regents of the University,
                                  acting pursuant to certain
                                  powers delegated to it by the
                                  Legislature, hae.mqulred the
                                  member to serve on the board
                                  or comgibslon as an addltlotil
                                  duty of his +nplojwnt by the
                                  University and has found as a
                                  fact that the member's service
                                  on the board or commission 1s
                                  compatible wlth his employme&
                                  by the University and Is a
                                  benefit and advantage to the
                                  University and to the State
Dear Mr. Heath: '                 of Texas.
     You have requested our opinion on the above captioned
matter.
      We have very recently had occasion to re-examine ihe
.appllcable Texas Constitutional provisions and case authorities
 generally appllcable.to the facttil situation presented by your
 request in Attorney General's O&nlon No. C-527. dated October
 15, 1965, a copy of which we attach-hereto.
      You advise that the boards or commlssltinsupon which the
 service Is to be performed "vary widely a&to characteristics,"
 that some Involve the taking of oaths, some having definite


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Honorable W. W. Heath, Page 2          Opinion No. C-550

tenure, etc., but none possess and perform sovereign power8 of
government. We do not regard any one or even several of such
characteristicsor conditions of an office or position of honor,
trust, or profit as being determinatlve..~F!utgenerally such
service as you have described would not appear to be prohibited
under the facts presented. It Is our conclusion that,,as
shown by the authorities set out In our Opinion No. C-527,
members of the faculty or administrationof the Unlverslty of
Texas may perform the service on the board or canmlas~on,
provided that.neitherthe board, commIssIon nor the members
thereof exercise sovereign powers of either the Federal or
State government.
     The Texas statutes (Articles2584, et seq., V,A.C.S.)
provide In pertinent part that:
               "The government of the University of
          Texas shall be vested In a Board of Regents
          composed of nine persons. . . . (Art. 2584)             .
          They shall . . . appoint a president; . . ,
          appoint the professors; . . . fix their .,
          respective salaries; and they shall enact
          such by-laws, rules and regulations as may
          be necessary for the successful management
          and government of the University. . . .
          (Art. 2585) The Regents shall have,power
          to remove any profei3sor,  .or, tutor . . .
          connected with the lnstl6J  u Ion when, in
          their judgment, the interest    of.the
          University shall require it. ('Art.2586)."
    Prom the foregoing statutory  provisions It Is clear that
under the law, the Board of Regents has full power and
authority to employ and discharge members of the faculty and'
administrationand to prescribe the duties which each of them
shall be required to perform.
     It Is also clear that since the Board of Regents exercises
delegated powers, Its rules are of the same force as would be a
like enactment of the Legislature, and Its official interpre-
tation placed upon the rule so enacted becomes a part -of the

   1.iTeic.SuD.
             19%):   -To   th=
            There f a*~, 'de have :rs.ltt~allon
                                              I:.wnlch ti:eenip?oyeeof
     a state agency 1~ directed bj*zne agency$s governing board,.
     acting   pursumc     tc tertaln powers deiegatcd to 1; by the
     Legislature, to serve 01:such a bcsrd or co8mnlsslon.cxerclslng
     no sovereign powers of gwernwent,       as sn addItIona duty of his
     position of emplojmcnt.
          Under such case authorltiec as now exist In Texas, the.
     Constitutionalprohlbltlonsagainst dual office holding (Art.
     16, Sets. 12 and 40) were held not applicable where under the
     law additional dutles were merel~yImposed on an existing




          For example, In Flrot.Eaptlst Church v. City of Ft. Worth,
     $E:    the &au .creatingthe Fort Worth Independent School Dla-
';    r c provided that the assessment and.collectIon of the taxes
     of the district.would be made by the assessor and.collector of
     the taxes of the Clty.of Fort Worth. It was contended that
     this violated the constitutionalprohlbltlon against one person
     holding more than one civil office of emolument. in holding
     that there was no violation of tileconsrltutlonr-1provision,
     the Court said:
Honorable W: W. Heath, Page 4               OpltilonNo. C-550

              "The Imposition of additionalduties,'
         says Corpus Jurls, vol. 46     934 II29
         'upon an existing office, io*be pei-fonuei
         under a different title, does not constitute
         the creation of a new office.' The same
         authority further says: 'An office to which
         the dutlks of another are annexed remains
         technicallya single office; It Is not an
         office under Its own name and title and
         another under the name of the one whose
         duties are annexed to It.' See, also,
         Allen v. Fldelltv Co.. 269 Ill. 234, 109
         N.E. 1035; Hat&id v: &go Count~~Court,
         80 W.Va. 165, 92 S.E. 245; State'v.
         Powell,.109Ohio St. 383, 143 N.E. 401."
         (Emphasissupplied)
     This office has followed the same rationale as that :
adopted by the cotits'ln the cited cases In at~least~three'
                                         Opinions Nos. S-94

     Since the primary purpose of Section 33 of Art. 16 of the
Texas Constitutionwas to prevent dual office or position
holding, we can ljerceive of no reason why the same lnterpre-,
tatlon gfven to Art. lb,,Sets. 12 and 40 should not be .',~~
analcigous.~to
             aiidequally apIjllcableto Section 33 of Art. 16.
     Thls office, In Attorney General Opinion No. 0-2607 (1940),
said that the object sought td be accomplishedby Section 33
was as follows:
               I,
                . . . that no person should receive
          compensation from the State for services to
          be rendered It, when during the time such
          compensationIs to be earned such person,
          by accepting and holding another position
          under the State or the United States, has
          obligated himself to render services In
          connectlon.wlththe latter posltla, so
          that he may not render full.value In the
          first capacity for the compensationwhich
          the State has agreed to ay. . '.. So con-
          strued, this Section (33P seeks to avoid
          even the possibility that the State may
          not receive a full quid pro quo for
          expenditures by way of compensationfor
          services to be rendered in one capacity,


                                -2645   -
Honorable W: W. Heath, Page 5          Opinion No. C-550

          by reason of the person serving In that
          capacity placing hlmself In such a position
          that he may be tempted to neglect the
          duties of the one place for the respon-
          slbi.lltlesof the other.'
     If, therefore, the service on the board or commission Is
made an addlt(ona1 duty, and Is not such as would tend to cause
the University employee to neglect his other duties and reapon-
slblllties to the University,and the Board of Regents has
entered an administrativefinding that such service on the
board or commlsslon 'Is a benefit and advantage to the Unlver-
slty and to the State of Texas, and further that such position
does not exercise any sovereign functions of government' then
our above stated conclusion with regard to the non-appllcablllty
of Section 33 in this Instance Is entirely consistent and com-
patible with the object sought to be accomplishedby that section
of the Constltutlon.
     Since two offices or posltlons of honor, trust, or profit
are not being simultaneouslyheld, and the member's service on
the board or commlsslon ls related and.compatlblewith his
employment, the common iaw rule prohibiting dual office holding
on the ground of lncompatlbllltyla not violated. 47 Tex.Jur.2d
42, Public Officers, Sec. 28.
     Texas cases Pollow the general rule.as to added duties and
which rule 1s succinctly stated In Ashmore v. Grbater Greenville
Sewer Dlst., 211 S.C.~n. 44 S.E.26 tQ5,173 A.L.R. ,397:
                 "The rule here enforced wlth'respect
          to double or dual officeholdingIn vlo-
          'latlonofithe constitution is not applicable
          to those officers upon whcdnother duties _
          relating to their respective offices are
          placed by law: A common example la ex
          offlclo membership upon a board or colmalSSlon
          of the unlt of government which the officer
          serves   In his official capacity, and the
          functions of the board or commission are




     In accord, see Eluitt v. State, 56 Tex.Crlm. 525, 121 S.W.
168 (1909); Zasb:.andCountyv. REG'.b,288 S.W. 518 (Tex.Clv.App.
1926, error ref-). See the excellent discussion in lkCu11ers
y. Board of Com'rs. of Wake County, (N.C. 1912), 73 3.E. 61b,
    Honorable W. W. Heath, Page 6          Opinion No. C-550


    which cites the Texas case of Powell v. Wilson, 16 Texi 59
             Judges who sit on juvenile boards perform related
    ~%%nal     duties. Jones v. Alexander.59 S.W.2d 1083 (Corn.
                Jordan v. Crudglnuton,149 Tex. 237. 231 S.W.2d

         However, In order that we be not misunderstoodas to the
    effect of this Opinion, it appears necessary further to point
    out that we do not Interpret the above cited cases Involving
    the "added duty" theory as permitting the simultaneoushold-
    ing of two positions of honor, trust, or profit under the state
    or federal government.
         Our conclusion 1s that a position with the state or federal
:   government which exercises no sovereign functions of government
    and Is found to be ComDatible by the Board of ReRents Is not a
    position of honor, tr&t or prokt as set out lri-Article  16,
    Sec. ,33of the Texas Constitution.

                            SUMMARY
                   Service by-a member of the faculty
             or
             -  administration  of the Unlvetisltyof
             Texas on a state or feder'alboard or
             commission, not,exercislngsovereign
             powers of either the federal or stati
             government violates neither the common
             law rule of incompatlbllltynor Sections
             12, 33 or 43 of Section 16 of the Con-
             stitution of Texas. Where the University
             Board.of Regents- acting pursuant to
             certain powers delegated to It by the
             Legislature,has promulgated rules and
             regulations requiring such service, and
             correctly finds that the service is
             compatible with the employment and a
             benefit to the University of Texas and
             .to the state, and that such position does not
             exercise any sovereign functions of government,




                                -2647-
   Honorable W. W.   Heath, Page 7            Opinion No. c-550

               the member may so serve without
               violating such sections of the Con-
               stitutlon and may be validly paid out
               of the State Treasury his salary or
               compensationas an employee of the.
               University.
                                     Yours very truly,
                                     W&3GONER CARR
                                     Attorney General.of Texas




   KBT/'dl:fb
   APPROVED:
   OPINION COMMITTEE
.  W. V. Geppert, Chairman
. H. Grady Chandler
  .Robert'Flowera
   Roger l$ler
  Arthur Sandlin
   Marietta .Payne.
"..‘APPROVEDFOR TRJ3A'iTORNEyGENERAL
   BY: T. B. Wright




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