                     THE   ATTORNEY                  GENERAL
                              OF%%XAS
                           .AUSTIN.       TEXAR     78711
t:HUAWWHD   C.   MAHTIN




                                      November 15, 1971


      Honorable Jinmy Morris                      Opinion No. M- 997
      Criminal District Attorney
      Navarro County Courthouse                   Re: Construction of Sec. 12, 33
      Coreicana, Texas 75110                          and 40 of Art. XVI, Conet.
                                                      of Texas, and Art. 6252-9a,
                                                      V.C.S., relating to certain
                                                      city offices and Aeeietant
      Dear Mr. Morris:                                Poetuaeter.

           Your recent letter requesting the opinion of this office
      concerning the referenced matter poses the following questions:

                  "1. Can a man 8erve a city as Civil Service
            Conmissioner (non-salary office) for the Police
            and Fire Departments and at the earnatime serve
            the same city as a member of the Board of Equali-
            zation (also a non-salary office)?

                 "2. Can a man nerve ae Civil Service Corn-
            missioner for the Police and Fire Departments and
            at the saxe time be Aesietant Postmaster (a federal
               .
            office paying a salary)?"

            For purposes of this opinion we assume these offices serve a
       city or town and are non-elective.

           The following provisions of the Constitution of Texas are
      pertinent to your inquiry:

                  "No . . . person holding or exercising any
            office.of profit or trust, under the United
            States,  or either of them, . . . ehall . . .
            hold or exercine any office of profit or trust
            under thie State." Article XVI, Section 12.



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Honorable Jimmy Morris,   page 2   (M-997)




            "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 of honor.
     trust, or profit, under this State, except as pre-
     scribed in this Constitution . . . It is further
     provided, _ . . if authorized by the Legislature
     by general law under such restrictions and limita-
     tions as the Legislature may prescribe, that a non-
     elective .State officer or employee may hold other
     non-elective offices or positions of honor, trust, or
     profit under this State or the United States, if the other
     offices or positions are of benefit to the State of
     Texas or are required by State or federal law, and
     there is no conflict with the original office or position
     for which he receives salary or compensation . . . n
     Article   XVI, Section 33,

          "No person shall hold or exercise, at the same
     time, more than one Civil Office of emolument,
     exceptthat of Justice of Peace, County Commissioner,
     Notary Public and Postmaster . . . unless otherwise
     specially provided herein." Article XVI, Section 40.

     Pursuant to the authorization contained in the 1967 amend-
ment to Section 33 of Article XVI, supra. the Legielature. in
1969, enacted Article 6252~?a which p-&ides, in-full, as
follows:

           "Section 1. A nonelective state officer or
     emnlovee may hold other nonelective offices or
     positions of honor, trust, or nrofit under this
     state or the United States, if his holdins the
     other offices or positions is of benefit to
     the State of Texas or is required by state or
     federal law, and if there is no conflict betwean
     his holding the office or uoaition and his hold-
     inq the oriqinal office or wsition for which the
     officer or employee receives salary or compensation.


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    Wonorable Jimmy Morris. page 3       W-997)




               “Sec. 2.  Before a nonelective atate officer
          or employee may accept an offer to serve in other
          nonelective offices or positions of honor, trust,
          or profit, the officer or employee must obtain
          from the governing body, or if there is no govern-
          ing body, the executive head of the agency. division,
          department, or institution with which he ie aeeociated
          or employed, a finding that the requirements of Sec-
          tion 1 of this Act have been fulfilled. The govern-
          ing body or executive head shall make an official
          record of the finding and of the compensation to
          be received by the nonelective officer or employee
          from such additional nonelective office or position
          of~honor, truet, or profit including specifically
          salary, bonus, per diem or other type of compensa-
          tion.

                   "Sec. 3.
                         The governing body or executive head
              shall promulgate rulea and regulations necessary
                                                           to
          carry out the purposes of thim Act.” (Pmpha8i.s
          added.)

         In regard8 to your firat question, it is settled that the
    municipal poaitionr therein set forth are offices of trust
    under the State of Texa8. Willi v. Potts, 377 S.W.2d 622 (Tex.
    Sup. 1964); Attorney Qoner8l's Opinion No. U-842 (1971).

         This office hae previouely held in AttOMey  General's
    Opinien No. M-193 (1968) that the prohibitions contained in
    Section6 12, 33 and 40 of Article XVI must all be considered
    in light of the proviso that was added to Section 33 by means
    of the 1967 amendment to that section. That proviso specifically
    authorizes the holding, by a non-elective State officer or
    employee, of more than one office or position of honor, truet,
    or profit under the laws of thim State or of the United States,
    provided the other office is of benefit to the State of Texas
    or is required by law and there is no conflict with the original
    office.




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            Honorable Jimmy Morris. page 4   (M-997)




                 We are in accord with the reasoning of Attorney General's
            Opinion No. M-193 (1968), and the authorities cited therein, and
            hold that the 1967 amendment to Section 33 of Article XVI, in
            addition to explicitly amending that Section, had the effect of
            impliedly amending Sections 12 and 40 of that Article, and that
            those Sections must. accordinglv.
                                         - -- be construed in consonance with
            that amendment, and Article 6252-9a enacted pursuant thereto.

                 Moreover, it has long been established that Section 40 of
            Article XVI, prohibiting the holding by one person of more than
            one civil office of emolument

                      "applies only to offices of emolument.
                 anolument means a pecuniary profit, gain, or
                 advantage; hence the same uerson mav hold two
                 civil offices where no nay, compensation, or
                 pecuniary gain attaches to one of them, provided
                 they are not incompatible." 47 Tex. Jur.2d 41.
                 Public Officers, Section 27. (Emphasis added.)

            That Section is, therefore, inapplicable to your inquiry.

                 YOU are therefore advised that, in answer to your first
            question, one person may, at the same time, hold both the offices
            of Civil Service Commissioner and thatof 'memberof a Board of
            Equalization, provided the findings and other requirements of
            Section 2 of Article 6252-9a have been met.

                 Your second question involves the legality of one's boldinq
            the offices of a city Civil Service Commissioner, which is non-
            salaried, and that of Assistant Postmaster, a salaried federal
            position.

                 We are of the opinion that the blanket prohibition of
            Section 12 of Article XVI, forbidding the holder of a federal
            office of profit or trust from holding a State office is also not
            applicable to the,situation set forth in your second question,
            by virtue of the addition of the 1967 proviso to Section 33 of




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         Honorable Jimmy Morris,   page 5    (M-997)



         Article XVI and the provisions of Article 6252-9a.

              Therefore, you are further advised that one person may, at
         the same time, hold both the office of Civil Service Conmissioner
         and the federal office of Assistant Postmaster, provided the
         findings and other requirements of Section 2 of Article 6252-98
         have been met.

              We are also of the opinion that none of the offices at
         issue in this opinion are incompatible, and that they fall within
         the legally acceptable standard, which has been stated as follows:

                   Wffices   are incompatible where their duties
              are or may be inconsistent or (In) conflict, but
              not where their duties are wholly unrelated,  are in
              no manner inconsistent and are never in conflict,
              and where neither office is accountable or under the
              dominion of, or subordinate to, the other, or has
              any right or power to interfere with the other in
              the performance of any duty." 47 Tex.Jur.Zd 43,
              Public Officers, Section 20.

                                   SUMMARY

                       (1) Pursuant to Sections 12, 33, and 40
                   of Article XVI of the Constitution of Texas,
                   one person may, at the same time, hold the
                   offices of Civil Service Coanniesionerand
                   member of the Board of Equalization of a town
                   or city, provided he has complied with the
                   requirements of Section 2 of Article 6252-9a,
                   Vernon's Civil Statutes.

                        (2) Pursuant to Sections 12, 33, and 40
                   of Article XVI of the Constitution of Texas,
                   one person may, at the same time, hold the office




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         Honorable Jimmy Morris, page 6    W-997)



                  of Civil Service Cosnniesionerand the office
                  of Assistant Postmaster both in a town or
                  city, provided he has complied with the re-
                  quirements of Section 2 of Article 6252-98,
                  Vernon's Civil Statutes.

                                           Ve    truly yours,
                                             H




                                                    General of Texas

         Prepared by Austin C. Bray, Jr.
         Assistant Attorney General

         APPROVED:
         OPINION COMMITTEE

         Kerns Taylor, Chairman
         W. E. Allen, Co-Chairman
         Fred E. Davis
         Lonny Zwiener
         Linward Shivers
         Lewis Jones

         SAM MCDANIEL
         Staff Legal Assistant

         ALFRED WALKER
         Executive Assistant

         NOLA WHITE
         First Assistant




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