             4'a~Arrrom~~               GENERAL

                            OF-TEXAS




                                                  c


Honorable T. 0. Walton, President
Agricultural and Mechanical College of Texas
College Station, Texas
Dear Sir:                       Opinion No. O-3779
                                Re: Payment by A. & M. College of
                                     Army officers employed at the
                                     College.
        Your letter of July 17, 1941, states that at present
you have on duty at the College approximately thirty United
States Army officers, In the following categories:
        1.      Officers of the regular Army on the active lfst.
        2. OffFcers of the regular Army on the retired list,
called to active duty.

        3. Officers of the reserve corps called to active
duty for periods of one year.
        From your letter, it appears that these Army officers
on active duty are detailed for R. 0. T. C. duty at the Col-
lege, and are employed by the College to serve the positions
of Commandant, Assistant Commandant, and tactlcal officers,
for the control and exercise of discipline of the cadet corps,
as well as non-military students.
        Your questlon. as we understand It, is whether you may
pay to these Army officers, who have accepted and who hold and
exercise the positions of Commandant, Assistant Commandant,
and tactlcal officers, the salary appropriated by the Legisla-
ture for such positions.
        Your inquiry involves the provisions of the Texas Con-
stitution, to-wit, Article 16, Section 33, and Article 16,
Section 40.
        Article 16, Section 33, of the Constitution, provldes
as follows:
       "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
Honorable T. 0. Walton, President - page 2           o-3779


       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 this Constitution.
       Provided, that this restriction as to the drawing
       and paying of warrants upon the treasury shall
       not apply to officers of the National Guard of Texas,
       the National Guard Reserve, the Officers Reserve
       Corps of the Unlted States, nor to enlisted men of
       the National Guard, the National Guard Reserve and
       the OrganizedReserves of the United States. [Sec.
       33, Art. 16, adopted election November 2, 1926;
       proclamation January 20, 1927.)"
           Article 16, Section 40,   provides:
           'NO person shall hold or exercise, at the same
       time, more than one civil office of emolument, ex-'
       cept that of justice of peace, county commissioner,
       notary public and postmaster, officer of the National
       Guard, the National Guard Reserve, and the Officers
       Reserve Corps of the United States, and enlisted men
       of the National Guard, the National Guard Reserve,
       and the organized Reserves of the United States,
       unless otherwise specially provided herein. Pro-
       vided, that nothing in this Constitution shall be
       construed to prohibit an officer, or enlisted man
       of the National Guard, and the National Guard Reserve,
       or an officer in the Officers Reserve Corps of the
       United States, or an enlisted man in the Organized
       Reserves of the United States from holding in con-
       junction with such office any other office or position
       of honor, trust or profit, under this State or the'
       United States. (Adopted election November 2, 1926;
       proclamation January 20, 1927.)"
        In the case of Carpenter v. Sheppard, 145 S. W. (2d)
562, our Supreme Court held that an officer of the Texas Na-
tional Guard ordered into the active military service of the
United States and engaged as an officer in such service, re-
mained "so far as Texas is concerned", as respects the ap-~
plication of the provlsos to Article 16, Sections 33 and 40,
an officer in the Texas National Guard. In other words, the
Court held that, as respects the application of Article 16,
Sections 33 and 40, the officer is classified according to
the status of origin -- that the proviso was intended by the
people to apply to the National Guard officer even after he
acquired the status of an officer in the active military
service of the United States, since he was ordered Into that
service by virtue of his original status as Natlonal Guard
officer.
Honorable T. 0. Walton, President - page 3         o-3779


        This holding cannot logically or reasonably be re-
stricted to National Guardsmen, but must also be applied to
persons in the other exempted classifications. Hence, for
Instance, a reserve offlceror a retired Army officer, ordered
as such into active service, still occupies, so far as the
application of the exemptlons.contalned in the provfsos ,to
Article 16, Sections 33 and 40, are concerned, his status of
origin -- to-wit, the status of reserve officer or retired
Army officer,
        From what has been said, it follows that Article 16,
Sections 33 and 40, by virtue of the p~ovlsos, do not pro-
hibit retired Army officers and officers of the reserve corps,
ordered to active duty, from holding a civil office under this
State, or from receiving compensation from the State for
services rendered as a civil officer, agent, or employee, of
the State, while in such active military service of the United
States,
        The offlcer of the regular Army, on the active list,
         is not within the provisos to Article 16, Sectfons
;y:zF40 n He Is not in the active military service by reason
of an order operating upon him as a member of one of the ex-
empted classifications. Consequently, the officer of the reg-
ular Army on the active list employed by the College, hy virtue
of the provisions of Article 1.6, Section 33, cannot be pald
the compensation attaching to his employment by the College
for the period of time that he remains an officer of the reg-
ular Army on the active list.
        Summarizing the above, we advise that offloers of the
regular Army on the active list may not be paid from your ap-
propriations for service rendered as offfcers, agents, or em-
ployees of A. & M, College. Officers of the reserve corps and
retired Army officers, ordered as such to active duty under
the United States, may be paid for services rendered as officers,
agents, or employees of the College, though such services are
rendered while they are in active service under the United
States -- provided, of course, that appropriations to pay for
the services rendered are available to you for expenditure.
        Your letter refers to an opinion which you state was
written by this department on April 5, 1941. This opinion,
according to the statement contained in your letter, held that
under the provisions of the Constitution of the State of Texas,
various agencies and departments of the State government could
not supplement salaries of Army officers that might be assigned
to duty in connection with departments of the State government.
        The question IS not one of supplementing salaries re-
ceived by Army officers from the Federal Government, but one
Bonorable T. 0. Walton, President - page 4         o-3779


of authority to pay, under the provisions of Article 16; Sec-
tion 33, of the Constitution, one who serves for compensation
as an officer, agent, or employee of the State while at the
same time holding an office or position of honor, trust, or
proflt under the Federal government.
        A search of the records of this department does not
reveal that we wrote on April 5, 1941 and opinion so broadly
phrased as Indicated in your letter. The opinion 'towhich you
refer is apparently No. O-3335, copy of which is enclosed here-
with for your information. You will observe that this opinion,
in the last two sentences of the last paragraph, states:
        "Your question, as we understand it, relates to
    men who are not In the National Guard nor any of the
    other exceptions listed in the above Constitutional
    provision. Hence we are compelled to answer your
    question in the negative."
                              Yours very truly
                            ATTORNEY GENERAL OF TEXAS


                              By s/Richard W. Fairchild
                                   Richard W. Fairchild
                                              Asslstant

RWF:fs:wc
Enclosure

APPROVED AUG. 9, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee by REKChairman
