          THE      ATJFORNTEY         GENERAL
                        OF   TEXAS




Hon. Olin Culberson
Chairman
Railroad Commission of Texas
Austin, Texas
                 Opinion No. W-201
                  Re:   Can a Railroad Commission employee also
                        serve as a Joint Board member for the
                        State of Texas under appointment by the
                        Interstate   Commerce Commission, and
                        whether such membership constitutes     an
                        office   or position of honor or trust?
Dear Mr.. Culberson:.
          You have requested the opinion     of this   office   in
answer to the following  question:
           “Can a Railroad Commission employee also
     serve as a Joint Board member for the State of
     Texas under appointment by the Interstate  Com-
     merce Commission, and whether such membership
     constitutes  an office or position of honor or
     trust?”
            Part II of the Interstate    Commerce Act, Section 205
(Title 49 U.S.C. A., Ch. 8, Sec. 305) provides that the Inter-
state Commerce Commission shall, under certain circumstances,
when the operations    of motor carriers   proposed to be conducted
involve not more th.:n, three states,    refer to a joint board for
appropriate   proceedin&e in which a hearing is r.equired or, in
the opinion of the Commission, is desirable,       certain applica-
tions for certificates    or licenses   or suspension of certifi-
cates or licenses    or other matters committed to the jurisdiction
of the Interstate    Commerce Commission under the Interstate      Com-
merce Act.
           Section 305(b) provides that when the Interstate     Com-
merce Commission (hereinafter   referred.to   as the Commission) is
required to refer any matter to a joint board, the Commission
shall create a joint board to consider the matter when referred,
and to recommend an appropriate    order thereon.   The joint boards
consist of a member from each state in which the motor carrier
operations  involved are, or are proposed to be conducted.      The
 Hon.   Olin Culberson,   page 2   (blw-201)


  members from such states shall be nominated by the ,RQ& of
  such state from its own membership, or otherwise.
              Section 303(2) defines the term, @@boardl’as the
  commission, board, or officials   (by whatever name designated
  in the laws of a State) which, under the laws of any State
  in which any part of the services     in interstate   commerce regu-
  lated by the Interstate    Commerce Bet is performed,, has juriz-
  diction  to grant and approve certificates      of public convenience
  or necessity    or permits to motor carriers,    or otherwise,regu-
  late the business of transportation     by motor vehicle in intra-
. state commerce over the highways of such State.         The Railroad
  Commission of Texas is therefore    the %oardt8 for the State of
  Texas.
               After the.borrd has submitted the nomination to the
  Commission, the Commlsrion is authorized tti appoint as a member
  upon the joint board any nominee approved by it.        Members of
  joint boards, when fuxtioning      under the oqder of appointment
  of the Commission, do not receive any salary, but do receive
  such allowances for travel and subsistence      expenses as the Com-
  mission shall provide.      Joint board members may use Government
  transportation    requests when traveling   in connection with their
  duties   as joint board members. The joint board continues in
  existence   for the consideration   of matters referred   to it by
  the Commission until such time as its existence may be terroi-
  nated by the Commission, and a substitution      of membership upon
  the joint board from any State may be made at any time by nomi-
  nation and appointment in the same manner as the original       tiomi-
  nation and appointment.
               Section 305(d) authorizes the members of the Commis-
  sion and the Commission’s examiners and joint boards to admin-
  is’:er o::.ths, subpoena witnesses  to testify and produce books,
  papers, etc.,     and to tske te3Xmony by deposition  as to any
  matter under investigation.
             Section jOj(e) provides that the joint boards shall
  give reasonable notice to parties interested     in the proceed-
  ings to be conducted, :rith an opportunity    for intervention
  therein,  and to participate  in the hearing.

             Section 305(j)  provides that no member of the joint
  board shall hold any official    relation  to or own any securi-
  ties of, or be in any manner pecuniarily     interested in any
  motor carrier or any carriers by railroad,    water, or other form
  of transportation.
            Section 305(a)    also provides .thatr  “In acting upon
  such matters so referred,    joint boards are vested with the
                                                                      :.i;   .:


Hon. Olin Culberson,    page 3       (WI-2011



same rights,   duties,  powers and jurisdiction  as are . . .
vested in members . . . of Ehe Commission to whom a matter is
referred  for hearing and the recommendation of an appropriate
order thereon.   . . .I1 Orders recommended by joint boards shall
be filed with the Commission and shall become orders of the Com-
mission and become effective'in    the same manner, and shall be
subject to the same procedure as provided in the case of orders
recommended by members or examiners under Section 17 of the In-
terstate  Commerce Act.
           Acting pursuant to Section 305, the Interstate  Com-
merce Commission on January 29, 1957, upon the recommendation
for nomination by the Railroad Commission of Texas, appointed
certain examiners of the Motor Transportation   Division of the
Railroad Commission of Texas as substitute   members to sit upon
certain joint boards theretofore   creited by the Commission.
The order of appointment reads in part as follows:
           "It is further ordered   That the nomination
     of the above-named substituie   members be, and the
     same is hereby, approved and the said persons so
     nominated be, and each of them is hereby consti-
     tuted and appointed a substitute    member of each of
     the above-named joint boards for the above-named
     State, and each of them, but not more than one of
     them at the same hearing,   is hereby authorized in
     the event the above-named member is unable to sit
     as d member of any said joint boards in any refer-
     red matter, to sit upon such joint board as a mem-
     ber thereof with all of the rights,    duties, and
     powers authorized by the Interstate    Commerce Act,
     to be conferred upon the members of joint boards,
     in any matter referred thereto;    . . .I'
           The examiners of the Motor           Transportation   Division of
the Railroad Commission of Texas hold            positions   of honor, trust
and profit   under the State of Texas.           Such employees receive
such salaries   as may be appropriated          by the Legislature    under
the Appropriation   Acts.
            Article   XVI, Section     33 of the Constitution     of Texas,
provides   in part:
           "The Bccounting Officers    of this State shall
     neither ~drawnor pay a warrant upon the Treasury
     in favor of eny 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 or the United
     States, ~except as provided in this Constitution.'Q
Hon. Olin Culberson,   page 4   (WW-201)


gone of the excepted positions  named in Section     33 are appli-
cable to the question propounded.
           A joint board member receives   no emoluments or prof-
its for his services upon such board.    Therefore,    the answe~r
to your question must be based necessarily    upon whether a joint
board member holds or occupies an office    or position   of honor
and trust.
           Among the criteria    in determining the distinction    be-
tween a l~position'l and an "officew    are (1) whether the holder
has been delegated.power    to exercise   a portion of the sovereign
functions  of the Government; (2) thatthe       powers entrusted are
conferred by law and not by contract;      (3) the fixing of the
duration and term of office;     and (4) the nature of the duties
to be performed and the powers which may be exercised.        Rendrlckg
y S a e 49 S.W. 705 (Civ.App. 1899); Kimbrough v. Rarnett, 93
T;x.~~&;   55 S.W. 120, I.22 (1gGC).
             A joint board member appointed by the Interstate    Com-
merce Commission, an agency of the Federal Government, upon
recommendation of the Railroad Commission of Texas prforms a
semi-judicial     duty very similar to that of a Master in Chancery
appointed by a Court.      He sits as a member of the semi-judicial
tribunal which, after hearing and weighing the evidence and
applying the law governing the facts developed,      makes recommen-
dations to the Commission that an appropriate      order be entered.
Ris membership uPon the joint board continues in lull force un-
til vacated by an appropriate      order by the Commission.
            When the method of the appointment as a member of the
joint board, the tenure or dsation       of the membership thereon,
ad the powers and duties delegated to .znd iulposed upon a joint
bo&rd m=mber are t;.-:eil into c.;nsiderL..:ion, it is the opinion of
this office  that ;i member.of such board is holdin;: an office     of
honor and trust under the United States Government.         Since such
joint board member is :lso holding a position       of emolument or
profit  under the State of Texas, the Comptroller of Public Ac-
counts is prohibited,    under the provisions    of Article XVI, Sec-
tion 33, of the ConstLiution of Texas, from dra-wing or paying
any warrant upon the State Treasury for salary or compensation
of the employee of the Railroad Commission while serving as a
member of the joint board.
           While SerVing upon a joint board the joint board mem-
ber is performing a function as a representative    of the State
of Texas on that tribunal,  the duties being somewhat similar
to those performed by the substitute   joint member while acting
as an examiner for the Motor Transportation   Division of the
Hon. Olin Culberson,    page 5    (WW-201)


Rciilroad Commission of Texas in conducting hearings to consider
matters under the jurisdiction           of the Railroad Commission of
Texas,    the   only   difference   being  that the jurisdiction    of the
joint board is confined to j&g&state            commerce while the juris-
diction    of the Railroad Commission of Texas is confined to &-
-state        commerce. Hence, the holding of an office          of honor
and trust under the Federal Government is not incompatible with
;;l;;;Esa      position    of honor, trust and emolument under the State
            .


            A substitute member of a joint board appointed
      by the Interstate  Commerce Commission under the pro-
      visions of Title 49, U.S.C.A.,    Section 305 (Inter-
      state Commerce Act, Part II), holds an office       of
      honor and trust under the United States Government
      and while serving as a member of a joint board he
      cannot receive any salary or compensation for his
      services  as an examiner for the Railroad Commission
      of Texas under the provisions    of Article XVI, Sec-
      tion 33 of the Constitution    of Texas.    The office of
      a joint board member and the position      of an employee
      of the Railroad Commission of Texas are not incom-
      patible.
                                       Very truly   yours,
                                       WILL WILSON
                                       Attorney GeDeral of Texas



                                       BY
                                         C. N. Richards
CKR:wb                                   Hssistant
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
Jas. N. Ludlum
W. V. Geppert
J. C. Davis Jr.
Marietta Mc&regor Payne
REVIl&!EDFOR THE ATTORNEY
                        GENERAL
BY:      130.   P. Blackburn
