     Honorable J. C. Mlnkert    Opinion No. o-6458
     County.Attormey            Re: Ellglblllty of a member
     Brazes County                   of the 49th Legislature
,    Bryan, Texas                    for appointment by State
                                     Board for Vocational
II                                   Education as Executive
                                     Officer under the provi-
                                     sions of Senate Bill No.
     Dear Sir:                       120, 49th Legislature.
                 We acknowledge receipt of your letter concern-
     ing the above subject matter, as follows:
                “Will you kindly inform me whether or not a
           member of the 49th Legislature is eligible for
           appointment by State Board of Vocational Educa-
           tion as Executive Officer under the provisions of
           Senate Bill No. 120, as set out in free conference
           committee1report shown in House Journal for Tues-
           day, May 29, 1945, on page 2835, near the botton
           of the first column on said page, where the fol-
           lowing language Is used "There is hereby appro-
           priated,the sum of Two Thousand Five Hundred
           Dollars ($2,5OO,OO) state's part or so:much there-
           of as Is necessary for the State,Board of Education    .:
           to employ an executive officer:&
                "The title of the Board should have been
           'State Board of Vocational Filucatlont~lnsteadof
           'State Board of Education'. This error was cor-
           rected by HCR No. 110, shown in House Journal of
           Wednesday, Nay 30, 1945, at page 2867 and concurred
           by the Senate, shown In Senate Journal for Thursday,
           May 31, 1945, at page 1238.
                "I call attention to the fact that this is
           a Federal government matching appropriation bill
           and all employees and'personnel are merely nominated
           by the State Board of Vocational Education and the
           appointment is made by the Federal Commissioner of
           Education at Washington, D. C. The amount appro-
           ,priatedIn the above bill Is merely the State's
           part of the salary-Bve              officer. The
           other portion Is put up by the Federal ffovernment."
                                                             -   -




Honorable J. C. Minkert, page 2 (O-6458)


       You cite Section 18 of Article III of the Consti-
tution as the basis for your inquiry. That Section Insofar
as pertinent Is as follows: "No Senator or Representative
shall during the term for which he may be elected, be
eligible to any civil office for profit under this State,
which shall have been created, or the emolument from which
may have been increased during such term . . ."
       An examination of Senate Bill No. 120 shows that
It Is an appropriation act by title and in substance.
It does not create any civil office nor does It increase
the emolument of any civil office within the State. In-
deed, if the bill should be so construed, It would probably
be void under the familiar requirement of the Constitution
that no bill shall contain more than one subject which
shall be mentioned in its title.
       The bill itself Is as follows:
            "Section 1. For the purpose of promoting
       public school Interests and matching Federal funds,
       there Is hereby appropriated out of the General
       Revenue Fund One Million Two Hundred Fifty-nine
       Thousand Fifty-five and OO/lOO ($1,259,055.00)
       Dollars, or so much thereof as may be necessary
       for the school year ending August 31, 1946, and
       One Million Two Hundred Fi?ty-nine Thousand Flfty-
       five and OO/lOO ($1,259,055.00) Dollars, or so
       much thereof, as may be necessary for the school
       year ending August 31, 1947, to be allotted and
       expended by the State Board of Vcrstiona.1Educa-,
       tion.
            "Section 2. The funds appropriated in this
       Act shall be expended in accordance with all
       Federal laws and regulations governing vocational
       education, providing that in schools where equali-
       zation funds are received, vocational agriculture,
       home economics, and trades and industries and dls-
       tributive education shall comply with such regula-
       tions as set forth in the equalization bill.
            "Section 3.  Provided that vocational agrl-"'
       culture, home economics and trades and Industries
       and distributive education teachers may be paid
       for twelve (12) months where .thesuperintendent
       of the school in which they are employed has certi-
       fied to the State Board for Vocational Education
       that such teacher Is actually engaged in teaching
       this work twelve (12) months.
Honorable J. C. Mlnkert, page 3 (0-6458)
.


             "Section 4.  The State Board for Vocational
       Education, through Its Executive Officer, is here-
       by authorized to receive and disburse In accordance
       .wlth plans acceptable to the responsible Federal
       agency, all Federal moneys that are made available
       to the State of Texas for such purposes as training
       personnel for national defense industries, and for
       such other activities as come under the authority
       of the State Board for Vocational Education.
            "Section 5.  There is hereby allocated and
       set aside the following amounts for the purpose
       indicated below:
            "Vocational Agriculture:
              Four Hundred Ten Thou-
              sand Four Hundred Twenty-
              five Dollars . . . . . . . .     $410,425.00
            "Vocational Home Economics:
              Three Hundred Twenty-one
              Thousand Seven Hundred
              Fifty-six Dollars . . . . .       321,756.oo

            "Trades and Industries:
              One Hundred Fifty-five
              Thousand Dollars . . . . . .      155,ooo.oo

            "Distributive Education:
              Fifty-five Thousand
              Dollars . . . . . . . e . .        55,ooo.oo

             "Vocational Rehabilitation:
               One Hundred Fifty-four
               Thousand Three Hundred Seven-
               ty-four Dollars . . . . . .      154,374.oo
             "Rehabilitation for Crippled
               children to be expended by the
               Department of Health: One Hun-
               dred Sixty-two Thousand Five
               Hundred Dollars . . . . . .    162,500.00

            "Provided unexpended balances remaining in
       the funds herein appropriated for vocational ser-
       vices may be re-allocated with the consent of
       each of the directors and with the approval of
       the Executive Office.
Honorable J. Q, Xlnkert, page 4 (O-6458)
                                                             .


            "The proper officer or offfcers of any State
       Department, bureaus, or divisions of State Agencies
       are hereby authorized to make application for and
       accept any glfts,,grants, or allotments from the
       United States government to be used on State Coop-
       erative and other Federal projects and programs
       In Texas, Including construction of public bulld-
       ings, repairs and Improvements. Any of such
       Federal funds as may be deposited In the State
       Treasury are hereby appropriated to the specific
       purpose authorized by the Federal Qovernment, and
       subject to the 15mltatlons placed in this Act.
       There is hereby appropriated the sum of Two
       Thousand Five Hundred Dollars ($2,5OO.OO) state's
       part.or so much thereof as Is necessary for the
       State Board for Vocational Education to employ
       an executive officer; and there is hereby appro-
       priated the sum of One Thousand Four Hundred
       Fifty Dollars ($1,450.00) state's part for the
       State Board for Vocational Education to pay direc-
       tor, Distributive Education.
            “section 6,  All laws and parts of law8 In
       conflict herewith are hereby expressly repealed.
            "Section 7.   The fact that many schools In
       this state are desirous of having the services of
       vocational teachers mentioned in this Act, and the
       further fact that If the schools receive such ser-
       vices it Is absolutely necessary that this appro-
       priation be passed, create an emergency and an
       Imperative public necessity that the Constitutional
       Rule requiring bills to be read on three several
       days In each House be suspended, and the same is
       hereby suspended, and this Act shall take effect
       and be in force from and after Its passage* and
       It is so enacted.
       Such being the nature of the bill the Constitution
above quoted would not prevent the appointment mentioned
by you. Such appointee Is not an "officer", but an employee
of the Board.
       The executive officer according to the Bill above
quoted Is to be employed by the State Board for Vocational
Education. Horeover the Federal funds appropriated and
allocated to the State under the co-operative system are
delivered to the State Treasurer and all disbursements
are made through the ordinary channels for paying out
State funds to State employees.
Honorable J. C. Mlnkert, page 5 (O-6458)   ”


       Finally, we direct your attention to Section 33,
Article XVI of the Constitution containing the following
pertinent language: "The accounting officers of this
State shall neither draw nor pay a warrant upon the
Treasury in favor of any person, for salary or compensa-
tion as agent, offiaer or appointee, who holds at the
same time any other office or position of honor, trust
or profit, under this State ***. While the member of
the Legislature is not Ineligible to the appointment
as executive officer by the Board nevertheless, as such
employee he does come within the provision of Section 33
above quoted, that is, he would be holding a position of
honor, trust and profit under the State, the,emoluments
of which would be paid out of the State Treasury which
Is forbidden while he at the same time holds the office
of Representative In the Legislature.
       This department held In an opinion dated September
22, 1913, written by the late Chief Justice.of,the Supreme
Court, then First Assistant Attorney General C. M. Cureton:
"Therefore, should Mr. Nayes accept the position of Pro-
fessor of Journalism in the University and at the same
time hold and exercise the duties of the office of Lieu-
tenant Governor, he could not draw pay for either such
office or such position." (See Opinions Attorney General
1912-1914, page 873)

       Since the position of executive officer Is not an
"office of emolument," the acceptance by the member of
the position would not operate as a constructive reslgna-
tion by the Representative under Section 40 of Article
XVI of the Constitution. In other words as a matter of
pure eligibility he might hold both the office and the
position of employment but he would be forbidden by Sec-
tion 33 of the Constitution to receive compensation for
either the office or the employment. See our Opinion
No. O-6578 involving the holding at the same time of
the office of member of the Legislature and an employ-
ment by a river authority district as an employee.
(Copy herewith)
       Of course, so far as the question of payment Is
concerned that matter would be eliminated in the event
the member should resign and his successor be elected
and qualified. Such Intention to so resign was mentioned
In correspondence accompanying your request.
Honorable J.   c).Minkert, page 6 (O-6458)


       We trust that this opinion satisfactorily answers
your inquiry,
                                   Yours very truly,
                              ATTORNEY OENERAL OF TEXAS



                                             Ooie Speer
                                              Assistant
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