                     The Attorney          General of Texas
                                      August 13, 1981
MARK WHITE
Attorney General


                   Mr. Paul Dean Aikin                    Opinion No. MW-360
                   Colonel, Selective Service System
                   Texas State Director                   Re: Whether ,electedofficials
                   P.O. Box 5218                          of the State of Texas, or any
                   Austin, Texas 78763                    of its counties or cities, are
                                                          prohibited from serving as
                                                          Local Selective Service Board
                                                          Members
                   Dear Mr. Aikin:

                        You have requested our opinion as to whether elected state,
                   county and city officials may serve as local board members of the
                   Selective   Service   System.    The   federal government    recently
                   re-established such boards and placed them in stand-by status, in the
                   event a military draft is again imposed. You ask whether elected
                   state and local officials may be appointed to fill the approximately
                   690.positions on local boards in Texas.

                        Article 16, section 12 of the Texas Constitution provides:

                                  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, shall be eligible as a member of
                             the Legislature, or hold or exercise any office of
                             profit or trust under this State.

                   III 1967. article 16. section 33, which theretofore had included
                   prohibitions similar to those of article 16, section 12, was amended,
                   in part, by adding the following:

                                  It is further provided...if authorized by the
                             Legislature by general law under such restrictions
                             and limitations as the Legislature may prescribe,
                             that a non-elective State officer or employee may
                             hold other non-elective offices or positions of
                             honor, txst, ST profit under this State or the
                             United States, if the other offices or positions
                             are of jeneflr. to the state cf Tzsas or are
                             required by State or federal law, and there is no
Paul Dean Alkin - Page 2   (MW-360)



         conflict with the original office or pcsftion for
         which he receives salary or compensation.

Attorney General Opinion M-193 (1968) held that this language served
lmpliedly to amend article 16. section 12, by creating an exception
tar non-elective state officers in certain circumstances. In 1969.
the Legislature implemented these provisions by adopting article
6252-9a, V.T.C.S. See also Attorney General Opinion M-997 (1971). In
1972, the exception was, without significant change of language,
removed from article 16, section 33, and inserted in article 16,
section 40. Although it continues to furnish an exception to article
16, section 12, it is not applicable to the present inquiry concerning
elected officials; the full prohibition of article lb, section 12,
remains in effect for such,individuals.

     The question is thus whether a member of a local draft board
holds an "office or profit or trust under the United States."
Although local board members may be reimbursed for travel expenses,
the position is declared by federal regulation to be "uncompensated."
32 C.F.R. 91603.3. Furthermore, the position is created by federal
law, and board members are appointed by the President. 50 U.S.C.
5460. Thus, the position is not "one of profit," but it is held
"under the United States." Accordingly, we need determine only
whether local board membership constitutes an "office of trust."

     A number of earlier Attorney General opinions have held that
positlons.which are essentially advisory are not offices of honor or
trust for purposes of article 16, section 12. See, e.g., Attorney
General Opinions O-5341 (president of local chapter of American Red
Cross); o-5314 (1943) (advisory board for selective service
registrants); O-4313 (1942) (Alien Enemy Hearing Board is merely a
fact finding and advisory body, which neither makes nor enforces
decisions). On the other hand, certain positions require an exercise
of a portion of the tederal sovereignty, and thus should be deemed
offices of honor or trust. See, e.g., Attorney General Opinions
O-5232, O-5107 (1943) (public member of the Regional War Labor Board);
O-2226, O-2226-A (1940) (member of local community committee of the
Agricultural Adjustment Administration).

     In Attorney General Opinion WW-201 (1957), this office said that
a nember of a joint board appointed by the federal Interstate Commerce
Commission held an office of honor or trust under the United States
and, as such, could not simultaneously be paid as an employee of the
Railroad Commission. That opinion was specifically overruled in
Attorney General Opinion C-527 (1965), which noted that service
performed on a      joint board involved "research, advice and
reccxendaticrs for crders to be officially promulgated and enforced
by t:12ICC." ?ecision niking  and enforcement of orders were retained
by :he Ccm',ssion. In sue circunstanc~s, ths opinicn held that a
ne!ker 0. a j\;int  board had not been dslegztzt any portion of the
federai scveriignty, and thus, could not reason&I:~ be said to occupy
21 cffLce cr xeition of honor or trust under t>e IJnitedStates. The
Paul Dean Alkin - Page 3   (MU-360)




opinion emphasized that there was little legal distinction between
"otfice under the United States" and "office or position of honor or
trust." The key. for purposes of article 16, section 12, was whether
the individual had been delegated "some of the sovereign functions of
the United States Government."

     We believe it is clear that members of local draft boards have
been delegated a portion of the federal sovereignty. 50 U.S.C.
1460(b)(3) provides, in pertinent part:

          Such local boards, or separate panels thereof each
          consisting of three or more members, shall, under
          rules and regulations prescribed by the President,
          have the power within the respective jurisdictions
          of such local boards to hear       and determine,
          subject to the right of appeal to the appeal
          boards herein authorized, all questions or claims
          with respect to inclusion for, or exemption or
          deferment tram, training and service under this
          title, of all individuals within the jurisdiction
          of such local boards. The decisions ot such local
          board shall be final, except where an appeal is
          authorized and is taken in accordance with such
          rules and regulations as the President may
          prescribe. (Emphasis added.)

By the clear language of this statute, it is apparent that members of
local draft boards have been delegated w~~me of the sovereign
functions of the United States Government," and therefore, occupy
offices of trust under the United States. See also Attorney General
Opinion O-5550 (1943). Accordingly, elected~~ state, county and city
officials are prohibited by article 16, section 12 of the Texas
Constitution from serving as local board members of the Selective
Service System.



                              SUMMARY

               Elected state, county and city officials are
          prohibited by article 16, section 12 of the Texas
          Constitution from serving as local board members
          of the Selective Service System.
Paul Dean hikin - Page 4      04W-360)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
ASSiStant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Aible
Rick Gilpin
Jim Moellinger




                                    P. 1207
