                  THE    ATTORNEY              GENERAL

                              OF    TEXAS

C:n*wFORD G. RL4HTIiw      AUSTX~,TEXAR       78711
  Ax-rORNYEY GENERA&
                            September 8,     1964


     Honorable Byron Tunnel1           Opinion No. C-307
     Speaker
     House of Representatives          Re!    Compensation of a member of
     Austin, Texas                            the House of Representatives
                                              who has a contractual agree-
                                              ment with the High Plains
                                              Underground Water Conser~a~
     Dear Mr. Tunnell:                        tion District No. 1.      ;
            Your request for an opinion reads as follows:
                 "I request that you advise me whether or
            n~otI can legally authorize expenditures of
            monies to and for a member of the House of
            Representatives under the facts set out.
                 'The Honorable H. G. Wells of Tulia,
            Texas, Representative, District 89, consist-
            ing of Briscoe, Hale, Swisher and Ployd Coven-
            ties, entered into a contract with the High
            Plains Underground Water Conservation District
            No. 1, to render legal services to the District.
            A copy of the contract is attached hereto for
            your information andcconslderation.
                 "At that time, September 30, 1963, in an
            abundance of caution, Representative.Wells re-
            quested that he be taken off the monthly Hou~se
            of Representative Member's payroll and since
            that time he has not received any compensation
            as a member of the House of Representatives.
                   "I request that you advise me:
            "1. Does the relationship between Representa-
                tive Wells and the High Plains Underground
                Water Conservation District No. 1, as evi-
                denced by the contract preclude him from
                receiving the Constitutional salary as a
                member of the House of Representatives?
            "2.    If the answer to question no. 1 is in the
                   negative, can I now authorize Representative

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Hon. Byron Tunnell,,page 2 (C-307)


            Wells to be paid for the months he has
            not received such salary.and-if so, can
            he be paid in a lump sum?"
        We have carefully examined the contractual agreement enter-
ed into by and between the High Plains Underground Water Conser-
vation District No. 1 and Representative Wells. Under this agree-
ment, Representative Wells became an independent contractor with
-the Conservation District and cannot be considered an employee of
the District nor an officer of the District. Therefore, Section 40
of Article XVI of the Constitution of Texas prohibiting a person
from holding or exercising at the same time more than one ci~vilof-
fice of emolument is not applicable to Representative Wells, under
the facts submitted. Likewise, Section 33 of Article XVI of the
Constitution of Texas prohibiting the Accounting Officers of this
State from paying a warrant 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 or the United States, ,isnot applicable.
       While Attorney General's Opinion C-221 (1964) .held that a
member of the Legislature~is not eligible to receive his salary
as a member of the Legislature while he is employed by a govern-
mental agency of the State, such holding is not applicable to the
facts submitted in your request, for the reason that the agreement
between the Conservation District and Representative Wells creates
the relationship of independent contractor rather than constitut-
ing a contract of employment.
       In view of the foregoing, you are advised in answer to ques-
tion no. 1 that the relationship between Representative Wells and
the High Flains Underground Water Conservation District No. 1 does
not preclude Representative Wells from receiving the constitutional
salary as a member of the House of Representatives.
       In answer to your second question, you are advised   that
since his constitutional salary for the months he has not   received
is now due and payable, such salary may be paid in a lump   sum.
                                                            '_r
                               SUMMARY
            An agreement between an agency of the
            State and a member of the Legislature
            which creates the relationship of an
            independent contractor, rather than
            constituting a contract of employment,
            does not violate the provisions of
            Sections 33 or &O of Article XVI of
            the Constitution of Texas and, there-
            fore does not preclude the payment of
                              -1465-
  Hon. Byron Tunn~ell,page 3 (C-307)


              the constitutional salary to such
              member of the Legislature.

                                YOL:.TSvery   truly,
                                WAGGONER CARR
                                Attorney General



                                ‘de+-
                                    Assistant
  JR:ms
  APPROVED:
  OPINION COMMITTEE
  W. V. Geppert,~Cha~irman
  Robert Smith
  Brady Coleman
  Roy Johnson
.?~APPROVE3 FOR THE ATTORNEY GENERAL
   By: Roger Tyler




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