Honorable George W. Cox
State Health Officer
Austin, Texas

Deer Sirs                            Opinion No. O-2471
                                     Rer Should en individual employed
                                          by the State who wes celled
                                          for a period of 28 days 'train-
                                          ing es a reserve officer in
                                          the United States Army be el-
                                          lowed pay from the State for
                                          more then the amount of 12
                                          working days which would be
                                          termed es his vacation?

        Your recent request for en opinion of this department on the
above stated question has been received.

       I% quote from your letter es follows:

       "Should en individual employed by the State, who
   wes celled for a period of twenty eight days training
   es a Reserve Officer in the U. S. Army, be allowed pey
   from the State for more then the emotmt of twslve wcrk-
   iag days which would be termed es his vecetim?

       "Captain Chester Cohen is employed by this depert-
   ment es engineer on stream pollution end is nom in
   training in San Antonio. He has been assisting cur
   Engineering Bureau during the time he is off duty
   while in training.

        "A letter is enclosed which has been prepared end
    simed by Mr. V. M. tihlers,Director of the Bureau of
    Sanitary hhginoering in whose division Captain Cohen
    is employed. This attached letter offers to e degree
    an explanation of the services which were rendered the
    department by Captain Cohen during the above mentioned
    training period."

        we also quote from the letter of Mr. V. M. Ehlers, Director
Bureau of Sanitary %ngineering, addressed to Mr. P. A. Kerby, edmin-
istretive Assistant, es fcllcWS:
                                                                   -       .




Honorable George   W.   Cm,   page 2       o-2471



       "In response to your inquiry about Mr. Chester
   Cohen's activities during the month of June, please
   be edvised that Mr. Cohen informed us upon his cell
   to military duty that he would be only too happy to
   keep the stream pollution work going while on duty
   putting in extra time and continuing to direct the
   stream pollution studies.

       "At the beginning of the month he esssmbled the
  equipment for the mobile stream pollution laboratory
  located at a convenient place in San Antonio end
  also instructed hh-.Berreda in his duties on cclleaticn
  of samples, records, end the like. Ee spent one day
  in Houston with Mr. W. C. Geuntt discussing with him
  the work that we have underway on meet pecking wastes
  in that city (see copy of his report.)

       "Gn the 15th of this month he ecccmpanied Mr, ?:.
  J. M. Berg, Superintendent of the City Sewage Treet-
  ment Plant of San Antonio, to Austin for e conference,
  Earlier in the month he conferred with Mr. J. 5,
  Bsrette on the program of solving the sewage problem
  of the -hvcLaredo8 (see copy of letter).

       "He checked the arrival of all laboratory equip-
  ment . He transmitted e pictorial survey of the mobile
  stream pollution laboratory. On June 4th ws referred
  to him e ccmmunioeticn from Capt. E. T, Norman steticn-
  ed et Kelly Field requesting assistance in the rehebil-
  itaticn of several of the Army sewage plants in Sen
  Antonio. On June 6th we requested that he acnfer with
  hh-.Terre11 Bartlett, consulting engineer of San
  Antonio, with reference to the Nixon water supply end
  on which he gave us a reporb. On June 5th he trans-
  mitted photographs end flcr diagrams to accompany en
  article on textile mill wastes.'

        Section 12 of Article XVI of the Constitution of Texas prCVidsS8

        "No member of Congress, nor person holding or
   exercising any office of profit or trust, under the
   United States, or either of them, or under any foreign
   power, shell be eligible es a member of the Legisle--
   ture, or hold or exercise any office of profit or
   trust under this State.'"

        This provision of the Constitution is qualified by recent
amendments to Sections 33 end 40 of Article XVI, adopted November 8,
1932. These sections reed:
-    -




    Honorable George R. Cm,   pegs 3



             “Sec. 33.   The Accounting Officers of this State
         shell neither draw nor pay a warrant upon the Treasury
         in favor of any person, for salary or compensation es
         agent, cffioer or appointee, who holds et the same
         time any other office or position of honor. trust or
         profit, under this State or the iJnitedStates, exoept
         ea prescribed in this Constitution. Provided, that
         this restriction es to the drawing and paying of
         warrants upon the Treasury shell not apply to Officers
         of the National  Guard of Taxes, the National Guard
         Reserve, the Officers Reserve Corps of the United States,
         nor to enlisted men of the National Guard, the X:eticnel
         Guard Resezv'e,and the Organized Reserves of the lJnited
         States, nor to retired officers of the United States
         Amy. Navy, and Marina Corps, and retired warrant officers
         and retired enlisted man of the United States Army, Nevy,
         end Marine rorps.

              “Seo. 40.  No person shall hold or exercise, et
         the same time, more than one Civil Offioe of emolument,
         except that of Justice of Peace, County Commissioner,
         Notary Publio end Postmaster, Officer of the National
         Guard, the Neticnel Guard Reserve, end the Officers
         ReserrreCorps of the IJnitedStates end enlisted men of
         the National Guard, the National Guard Reserve, end the
         Orgenized Resellresof the United States, end retired
         officers of the United States Army, Nevy, and Marine
         Corps, end retired werrent officers, end retired
         enlisted men of the United States Army, Navy, and Marine
         Corps, unless otherwise specially provided herein.
         Provided, that nothing in this Constitution shell be
         construed to prohibit an officer or enlisted men of the
         National Guard, and the National Guard Reserve, or an
         officer in the Officers Reserve VW-pa of the United
         States, or en enlisted men in the Organized Reserves
         of the United States; or retired officers of the United
         States  Army, Navy, and Marine Corps, end retired warrant
         officers, end retired enlisted men of the IJnitedStates
         Army, Nevy, and Marine Corps, from holding in conjunction
         with such office any other office or position of honor,
         'trust or profit, under this State or ths United States, or
         from voting at any Election; General-,Special or Primary,
         in this State when otherwise qualified."

             We quote from cur Opinion No. O-2426, as follows:

             "It is clear that under Sections 33 end 40 of Article
         XVI of the Constitution of Texas, end the departmantel
         payroll affidavit interpreted in the light of these
         acnstituticnal provisions, en officer in the Officers
Honorable George W. Cm,   page 4           o-2471



   Reserve Corps of the United States may hold in oonjunc-
   tion with that offiae any other position of honor, trust
   or profit in the State of Texas. and may receive salary
   or compensation for the same.

       "You are accordingly advised that employees of the
   Board of Insurance Commissioners who are Reserve Officers
   in the United States Army may continue receiving their
   salary from the State of Texas lrhile011active duty during
   their vacation, and under the circumstances described you
   may make the payroll affidavit required by the Comptroller."
        n   . . . . .

       "You are advised that this Seotion of the Departmental
   ,ApproprietionBill must be strictly complied with and
   State employees are limited to Twelve days' vacation,
   exclusive of Sundays and legal holidays, without deduction
   in salary."

        In this connection ws call your attention to that porti.onof
Section 2 of the Departmental Appropriation Bill, Senate Bill 427, pacts
1939, 46th Legislature, dealing with vacation allowance for State
employees, which provides as followsr

       "Vacation Allowance. Department employees shall,
   without deduction in salary, receive not exceeding twelve
   days' vaoation, exclusive of Sundays and legal holidays,
   on which State offices sre olosed, for each State fiscal
   year, suoh vacation period to be mutually agreed upon by
   the head of each department with his employees, provided,
   that employees belonging to the Texas fiationalGuard may
   have their vacation at the time of the meeting of the an-
   nual enoampnent. Provided, that no employee for whom a
   salary is hereby appropriated, shall receive compensation
   while on vacation unless he or she has been an employee of
   the department for not-less than six oalendar months
   preceding the vaaation period."

        We are enclosing herewith a oopy of our Opinion Iio,O-2426 for
your convenienoe.

        We call your attention to that portion of the Departmental Pay -
roll Affidavit required by the Comptroller of Publia Accounts to be made
by the head of each State Departient, whioh reads as follows:

        I'*+ + and that none of the employees on this payroll
    *re receiving salary or compensation, as 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 the State Constitution.'
Honorable George W. Cox, page 5             O-2471



        Seotion B of the rider to the Departmental Appropriation Bill,
under the head of salary and other provisions, p0 147, Senate Bill &lo.
427, Acts 46th Leg., 1939, reads in pert es follows:

        "No salary for which en appropriation is made herein
    shell be paid to any person unless suah person actually
    discharges assigned duties, hvery month the head of each
    department shall attaoh to the payroll for his dapar+8sent
    en affidavit, under oath, stating that the person8 listed
    in said payroll actually performed the duties for whioh
    they wers being paid. The Comptroller shell not issue
    warrants for the payment of salaries listed on said pey-
    roll unless this affidavit is filed with him, Eeoh de-
    partment head shall number aonsecutively the salaried
    positions in his department for which an appropriation is
    made herein (either out of the Ceneral~Revenue Fund, fees,
    receipts, speoial funds or out of other funds available
    for use by said department) and opposite the number of
    the position, he shell set out the title of the position
    end the name of the person employed to fill the same,
    This ststement shall be filed with the Comptroller, who
    shell, when issuing his warrant to any employee in pay-
    ment of salary due said employee. number the warrant with
    the seme number that is assigned to the position filled
    by said employee. Every department head shell notify
    the Comptroller in writing of any changes in personnel
    in his department. This provision shell not apply to
    seasonal help, end shall not prevent persons drawing
    their salary warrants during authorized vacation periods,"

        Employees are required to perform the duties and render the
services as required by the heeds of the various departments and tihen
the head of such department makes the affidavit es above mentioned,
stating that the employee has performed the duties assigned to him then
such mployee would be entitled to his compensation as such. It is true
that employees are limited to twelve days vacation exclusiva of Sundays
and legal holidays without deduotion in salaryj however, this is where
the employee performs no duty or renders no services end is errtitledto
his aompensation notwithstanding that he has performed no duty or
rendered no serviae.

        Trusting that the foregoing fully answers your inquiry, we are

                                             Yours very truly
                                        ATTORNXY GISNhRALOF TEXAS

AW:L1#:wc                               By s/!ArdellWilliams
APPROVED JLKY 11, 1940 s/Grover Sellers            Ardell Yiilliams
FIRST ASSISTANT ATTORNEY GENERAL                          ~Assistant
This Opinion Considered and Approved In Limited Conference
