.




                          THE        .~TTOKBTEY                GESERAZ.
                                           OF     %%XAS




         Honorable   John       Lawhon           Opinion      No. M-297
         County Attorney
         Denton County                           Re:      May a county attorney            serve
         Denton,   Texas                                  as a college         professor    at a
                                                          state     university       under the
                                                          provisions       of Sections      33
                                                          and 40 of Article           XVI, Texas
    .~                                                    Constitution,         and related
         Dear     Mr. Lawhon:                             statutes.
                        You have recently        requested     an opinion  from this
         office     regarding   the above       stated   matter,   we quote from your
         letter     as follows:

                                            "QUESTION
                          "Can the County Attorney   of Denton County
                  serve as professor     for one class  at a state
                  university?
                                     "BRIEF ON THE LAW
                          "A new case,      Tllley     v. Rogers,    405 S.W.2d
                  220, 224 (Tex.CIv.App.            1966,wr.ref.,n.r.e.),
                  directly     answers    this question.         There is no
                  later    case In olnt.           The Tilley    case construes
                  Art. 1.6,    Sec.fl0 of the Texas Constitution,
                  which article      restricts       a person from serving
                  In more than one civil            office    of emolument.
                         "The office        of County Attorney       Is such a
                  civil    office;      'however,    a professorship       Is not
                  an office.        A teacher      or college    professor    is
                  not an office        within     the meaning of the constl-
                  tutlonal      provlslons     of Art. lb, S . 40 of the
                  Constitution        of the State of Texa?            He Is an
                  employee      and the prohibition         of the constitu-




                                                 -1433-
Honorable           John     Lawhon,    page 2 (M-297)


          tional      provision        of Art.   16, Sec. 40 is in
                                             R                  405 s
          s%-F*’           224 T(~ex’“cI:::Ap~pef~~6~“~~“XS.,n.
                                  l1
                                       “CONCLUSION

                “The answer to this question                     Is that such
          County Attorney   can legally    serve                 a8 profeaeor
          for a class   at a state  university.”
                    Section      40 of Article   XVI, Vernon’s           Texas    Constl-
tution,        la    quoted      in part a8 follows:
                “No person shall    hold or exercise,                   at the
          same time, more than one civil     office                   of emolu-
          ment.  . . .‘I (ephasisam
             We have reviewed     the case of Tllley         v.
S.W.2d 220 (Tex.CIv.App.        1966, err.reS.n.r.e.),
your analysis    of that case.       You are also referred         to Attorney
General  Opinion V-689 (1948) which makes It clear               that it has long
been the position      of the Attorney       Qeneral    that a college    pro-
fessor  does not hold “a civil        office    of emolument.”       The court
in the Tllley    case,   suora,   was concerned        on1 with the hold-
ing of more than one !‘oSS Ice” undersection -3             0 of Article XVI.

           However, your question     also                      necessitates    an analysis
of Section  33 of Article   XVI, Vernon’s                        Texas Constitution,
which Is quoted,   In part,  as Scillowa:
                  “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       as agent,     officer    or appointee,
          who holds at the same time any other office                  or
          position      OS honor,   trust,      or profit   under ‘this
          Statel    except    as prescribed        in this Constltutlbn.
          . . .
                    Without   question,      a county ‘attorney    holds an “office
.of honor,          trust   or profit     under this    State.”    Article     329
                   Vernon’s   Civil    Statutes;    Attorney    Ueneral    Opinion No.




                                                 -   1,,434 -
Honorable     John Lawhon,      page    3    (M-297)



                Likewise,      this   office      has held many times previously
that     a college      professor     of a state         college      holds a position
of honor,       trust,     or profit     under this         State,      In Attorney
General      Opinions      Nos. C-527 (1965) and c-528                 (1965), it was
held that there was no material                   legal     distinction      between
"office      of honor or trust"            or "position          of honor or trust."
However,      there Is a material            distinction         between "office      of
profit"      and "position        of profit."          While the former term
means that the holder             exercises       sovereign        governmental     Sunc-
tlons,     the latter       term differs        in that       Its duties     are not
necessarily        so characterized          and embraces          both officers     and
employees.         A teacher      holds a "position"             of profit.      33 words
and Phrases        53, 55, "Position",            and 1968 Pocket Part,           pp g-11,
and cases       there cited.         See Attorney          General Opinion V-689 (1948),
and the many prior opinions                cited      therein,      that a school      teacher
falls     wlthln     the prohibited        term,      "position       of honor, trust,       or
profit."
            Therefore,     a county    attorney   who Is also teaching
at a state    supported    college    would be holding two positions
OS honor,   trust   or profit      and thus 1s subject   to the constltu-
tlonal  provisions      of Section    33, Article   XVI.

               Consequently,         the State    Comptroller     would be pro-
hibited     In paying the salary            or compensation      of an Individual
who Is presently           a county attorney        and also a professor      at a
state    college      or university.          However,    the County Attorney      Is
not prohibited          from serving       as a professor      In the state   col-
lege without        compensation,        and he may also draw compensation
out of funds,         the sources       of which are not from the State
Treasury      reaulrlna      the accountlna       officers     of this Stat'e to
draw or-pa       -a warFant          See Attorney       General Opinion Numbers
V-689 (I&)          and also-see        C-547   (1965).

              The people,     during   1967,   saw fit to amend Section
33   of Article    XVI so as to provide        that a non-elective       state
officer   or employee may hold other           positions      of honor,  trust
or profit     under this State       or the United States        under certain
specified     conditions,     but elected     officers     or position   holders
are still     subject     to the prohibitions       discussed    herein.    See
Attorney     General Opinion No. M-193 (1968).




                                         -   1435   -
Honorable     John   Lawhon,    page   4 (M-297)


                               SUMMARY
                A college     professor    at a state    university
        Is not a civil        office    of emolument under Section
        40 of Article        XVI, Constitution       of Texas.
        v. Rogers,      405 S.W.2d 220 (Tex.CIv.App.           19
        reS.n.r.e.)       and the County Attorney        may serve as a
        college     professor      of a state   college,    but without
        compensation       from the State      Treasury.
               The State    Comptroller    is prohibited    by Section
        33 of Article      XVI, Vernon's    Texas Constitution,
        from paying     the salary     or compensation   of a college
        professor   who Is also a county attorney.
                                                truly   yours,




Prepared     by James    C. McCoy
Assistant     Attorney    General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips,      Chairman
Kerns Taylor,    Co-Chairman
Bill  Corbusler
Pat Bailey
Arthur Sandlln
Robert Flowers

A. J.   CARUBBI, JR.
Executive  Assistant




                                       -1436-
