           *                                                R-597


                                  OFFICE     OF


                               AUSTIN. TEXAS
PRICE    DANIEL                    JULY 15, 1947
,,rrORNEY GENLRAI.




           Hon. C. H. Cavness           Opinion MO. V-303
           State Auditor
           Capitol Building   .         Re: Construtitionof Arti-
           Austin, Texas                    cle 16, Sections-33
                                            and 4.0,Texas Consti-
                                            tution, as applied to
                                            an independent con-
                                            tractor.
           Dear Mr. Cavness:
                      In your letters of June l&h 'and3Gth, you
            state that Mr. Jac L. Gubbels is a full-time employee of
           the State Highway Department, holding the position of
            "Head Landscape Architect n a position created by that
           Department which is not &ted in the AppropriationBill:
           His salary is paid'out of the State Treasury by warrant.
           During the time Mr. Gubbels was so employed, he‘entered
           into an agreement with the Austin IndependentS&ho01
           District. through its Board of Trustees, to:.conduota
           survey oh the Austin school system, and to'make recom-
           mendations for the locations for new sdhool sites In
           'connectionwith a program of develo ment through the'
           year 1966, Under such contract, anx while employed by
           the State Highway Department, Mr. Gubbels conducted the
           survey and made recommended locations for thirty-one
           school sites at an agreed fee of $750.00 per site. A
           check was issued to Mr. Gubbels on June 4, 1947, by the
           School Board in the sum of $23,250.00 for such services.
           You disclose that such check was paid from the proceeds
           of the sale of certain building-bonds issued "by the
           itzen Independent School District and/or the City of
                . .a You further state that: We have not ascer-
           tained as to whether any portion of Mr. Gubbels' School
           District duties were performed during working hours for
           tihicbhe was being paxd as an employee of the State
           Highway Department."
                     Your question is whether Mr. Gubbelst employ-
           ment.by the Austin Inde endent School District, concur-
           rent wxth full-time empPoyment by the State of Texas,
           comes within the prohibition of Section 33 of Article
           16 of our State Constitution.
     Hon. C. H. Cavness - Page 2, V-303

12
                At common law (adopted as the law of Texas in
      Article 1, R. C. S., when not inconsistentwith our
      statutes or Constitution),,Where is no limit to the
      number of offices which may be held simultaneouslyby
      the same person, provided that neither of them is in-
      compatiblewith any other; and this rule extends to
      offices of the highest grade, and which involve, for
      their adequate performance,the greatest expenditureof
      time and labor-v Throop, Public Officers, p. 33. It
      is stated in Vol. 2 (Rev.) McQuillin on MunicipalCor-
      porations, at page 144, that, "The same person may hold
      different offices which are not incompatible,unless
      forbidden by 1aw.v 43 Am. Jur. 153 recites that: "In
      the absence of express or implied statutory provision
      to the contrary,an officer who holds two or more-sepa-
      rate and distinctoffices, not incompatible,is enti-
      tled to the compensationattached to each office." And
      in 46 Corpus Juris, page 941, it says, "At conrmonlaw
      the holding of one office does not of itself disqualify
      the incumbentfrom holding another office at the same'
      time, provided there is.no inconsistencyin the func-
      tions of the two offices in question . . . The incon-
      sistency . . . does not consist in the physical impos-
      sibility to dischargethe duties of both offices,but
      lies rather in a conflict of interest, as where one is
      subordinateto the other . . . or'has the power to're-
      move the incumbent of the other, or to audit the ac-
     -counts of the other."
                                                      . .
                Meechsm on Public Offices Fd Officers,' p.
      269, announcesthe rule to be that:    . . . the mere
      physical impossibilityof one person's performingthe
      duties of the two offices as from the lack of time or
      the inability to be in two places at the same moment,
      is not the incompatibilityhere referred to. It must
      be an inconsistencyin the functions of the two of-
      fices, as judge and clerk of the same court, claimant
      and auditor',and the like."
               Under Tekas cases, applying the common la%
     rule, various positionshave been held incompatible;
     *hat is, city secretary and city recorder, State v.
     Brinkerhoff, 66 Tex. 45; school trustees and town al-
     dermen, Thomas v. Abernathy County Line Inde endent
     School District (Comm. App.) 290 S.1152;*a
     position with the Texas Employment Service and also
     private employmentimposing the same duties, A. G. O-
     pinion O-2929; County Commissioner and trustee of a
Hon. C. H. Cavness - Page 3, V-303                 I3


rural high school district,A. G. Opinion O-5145. See
casenote by John W. Stayton, 12 Tex. Law Rev. 367.
Ap lying these tests, it was held in A. G. Opinion    .
V- 83 (1947) that the offices of County Commissioner
and trustee of an independentschool district were not
incompatible. That opinion quotes the following from
Knuckles v. m      of Education (Ky. 1938), 114 S.W.
7-n       "1. . . Gcompatibility is recognized when-
ever one is subordinateto the other . . . or is sub-
ject to supervisionby the other, or where a contrarity
and antagonism would result in the attempt by one per-
son to discharge the duties of both.. . . two offices
are incompatiblewhere the incumbent of one has the
power to remove the incumbent of the other, . . . and
it also exists where the incumbent of one office has
the power of appointment as to the other office, or to
audit the accounts of another, norto exercise a super-
vision over another.'"
          But the position Mr. Gubbels held with the
Highway Department of'the State .in.conuectionwith
hi&wa beautificationis not incompatible,,underthe
tests 2:
       aid down by the common law,rules of decision,
with that of locating school sites. The two have lit-
tle or nothing in common. Neither is subordinate to
the other. The incumbent of neither has a supervisory
or appointive power over the other. There Is no in-
consistency in the functions of either, as the word
Vnconsistencyn is used in the common law.
          All of these authorities rovide, in sub-
stance, that eunless prohibited by Paw" a person may
hold more than one position with the State, assuming
no incompatibility. It therefore becomes necessary to
see what prohibitionshave been written into our law,
and what changes have been made in the common law as
applicable to Texas.
          The.‘framersof our Texas Constitutionmade
two exceptionsto the common law rule in Article 16,
Sections 33 and 40. Section 40 rovides that "No pe -
son shall hold or exercise,'attRe same time more tEarl
one civil office of emolument . . . ." (EmpAasis is
added throughout this opinion.)
          The distinctionbetween a public nofficer"
and an "employeev of the State is clearly drawn in an
Attorney General's opinion of September 22, 1913, by
C. M. Cureton, later Chief Justice of the Texas Supreme
      Hon. C. H. Cavness - Page 4, v-303
24.

      court:  An ~~officervexercises some governmentalfunc-
      tion; 'heis investedwith.some portion of the sover-
      eignty. A public office is a right, authority, and duly
      created and conferredby law, the tenure of which is
      not transient, occasionalor incidental. Among the cri-
      teria given for determiningwhether an employment is a
      public office or not, are the'requirementsof an offi-
      cial oath and bond; that the powers are granted and con-
      ferred by law and not by contract. The vofficerv is
      generally answerable for misfeasance in office, and is
      responsiblefor acts of his "emp1oyees.v Employment,
      on the other hand, is establishedby contract. It in-
      volves performingsuch duties as are prescribed by the
      employing agent. The llemployee'l is often subject to
      discharge at the will of the "officerv to whom he is
      responsible. It was specificallyheld in Olmstead 1.
      The Mayor of New York, 42 U. Y.,Super. Ct. 481, that a
      Edsca     arcmema      position similar to that of Xr.
      Gubbelsr  who was regularly eroloyed in the Department
      of F'ubliiWorks, was an "ezplo$een of the Commissioners
      and'not a public officer. These matters are fully dis-
      cussed in Loard v. Cs,   137 S.W. (2d) 880, writ re-
      fused; Knox v. Johnson, 141 S.W. (2d) 698, writrefused;
      Meechsm, Publicwrs,       Ch. 1; 42 Am. Jur:, Public
      Officers, Sections 2-16; 34.Tex. Jur., Public Officers;
      Sections 2-4; and in Annotations 53 A.L.R. 595, 93
      A.L.R. 333, 40 A.L.R. 1076.
                                       ,.C
       .
                Under the above'rule, the place Es. Gubbels
      holds with the Highway Department is.clesrly not an
      "office? but is a mere employment. Hence Section 40 is
      not applicable.
                The second prohibition laced in our Consti-
      tution is Section 33 of Article 1% . The pertinent por-
      tions of that section read:
                    "The accounting officers of this State
               shall neither draw nor ay a warrant upon
               the treasury in favor oT any person, for
               salary or compensationas agent, officer or
               appointee, who holds at the sane time any
               other office or position of honor, trust or
               profit under this State . . . .I'
                While school districts do not enjoy certain
      privileges and immunities enjoyed by the State (for ex-
      ample, the two year statute of limitation is applicable
      to them,,Hatcherv. State, 125 Tex. 84, 81 S.W. (2d)
.   .

Hon. C. H. Cavness - Page 5, V-303                  15

499, noted 14 Tex. Law Rev. 4111, it is generally held
that they are state agencies, erected and employed for
the purpose of administeringthe State's system of-pub-
lic schools. Love v_.Cit of Dallas, 120 Tex. 351, l+O
S.W. (2d) 20. Lewis v.-I+-
                        n e enwchool      District of
Austin, 139 feD,-l6*f              mupuy      v
                                              -. State,
125 Tex. Crim. 595, 121 S.W. (2d) 1003; 37 Tex. Jur.
865.
          Under the above cases, a person holding an
"office or position of honor trust, or profit" in a
school d.?.?trict,
                 would be hoiding the same "under this
State."
          ~However,from the facts given by you, it ap-
pears that Mr. Gubbels did not'hold an "office" or
flpositionnin the ordinary sense. He was not carried
on the School District's payroll as an agent, servant,
or employee. He was not employed on a yearly or month-
ly basis. He did not have auyone to tell him when,or
how to-work, or Mat hours to keep; he was responsible
to no one in the manner of his work; he had no desk,
or office hours, or title. He was free to employ as-
sistants without consulting anyone; and he, not the
School Board, would have been responsible for his own
and the torts of-,suchassi+antsr
                                       ._'
                                         .
          An "independent contractorn is defined in
POE;:   2 of the Restatement of the Law of Agency as
          *An independent contractor is a person who
contra& with another to do something for him but who
is not controlledby the other nor subject to the
other's right to control with respect to his physical
conduct in the performance of the undertaking."
          In distinguishing an independent contractor .
from an employee or servant, 2 American Jurisprudence
17 says, "An independent contractor may be distin-
guished from an agent in that he is a person who con-
tracts with another to do something for him, but who
is not controlledor subject to the control of the
other in the performance of such contract, but only as
to the result. A principal, on the other hand, has
the right to control the conduct of an agent with re-
spect to matters intrusted to him. The theory which
in many cases is adopted to differentiatebetween an
agent and an independent contractor is that one is to
be regarded as an agent or an independent contractor
according to whether he is subject to, or free from,
     Hon. c. H. Cavness - Page 6, V-303
3%
     the control of the employer with respect to the details
     of the work. . . .v'
               Justice Shar in Industrial Indemnit Ex-
     ;ham?~    =;:&I;!       Q=~~531, 160 @          7ja5,
                                  : "The general rule relat-
     ing to independentcontractorsrests upon certain ret-
     ognised tests; although such tests are not necessarily
     concurrentwith each other, nor is each test in itself
     controlling. Such tests are: (1) The independentna-
     ture of his business; (2) his obligation to furnish
     necessary tools, supplies, and material to performthe
     job; (3) his right to control the progress of the work,
     except as to finalresults; (4) the time for which lie
     is employed; and (5) the method of payment, whether by
     time or by the job. There are other tests, but the
     foregoing are consideredthe essential tests upon.which
     such rule is based."
              Mr. Gubbels~was not, therefore, under the a-
     bove criteria, an agent or employee of the SchoolDis-
     trict. His positionwas that of an independent con-
     tractor.
               The question then remains as to whether an in-
     dependent contractorwho enters on a contractual agree-
     ment with a school district holds an'noffice.-
                                                  or Pa
     of honor, trust, or profit," within the meaning o
     tion 33.
                A similar situationwas presented to this de-
       artment in 1927. Mr. J. A.,Phillips, a member of the
     8 exas State Board of Accountmcv. desired to ascertain
     whether, while holding that position he could either
      (1) receive regular pay as an em loyee of a state agency
     for doin accountingwork, or (2P perform such services
     as an in2ependent contractor. In an able opinion by
     Mr. D. A. Simmons, later president of both the Texas Bar
     Association and the American Bar Association, this of-
     fice said,
               t,
                . . . . Therefore,we can .advisewith-
          out hesitancy that being a member of the
          State Board of Public Accountancy under the
          Constitutionyou could not be paid compensa-
          tion as an agent, officer or an appointee of
          the State or any of its subdivisions. If,
          however, the employmentyou have in mind is
          as an independentcontractor and not as an
Hon. C. H. Cavness - Page 7, V-303                  17
                                     \ t

     agent, officer or appointee of the St&e,
     we have found no provision of the Consti-
     tution or law which would prevent you from
     accepting such a contractwhile serving as
     a member of the State Board of Public Ac-
     countancy. We take it that this board has
     nothing to do with letting such contracts
     or fixing in any manner the compensation
     therefor." (Op. No. 2671, Bk. 62, p. 109;
     Biennial Report 1926-28, p. 406)
          That opinion has never been overruled and is
similar to the situation presented by Mr. Gubbeis. It
was followed in an opinion by First Assistant Attorney
GeneralScott Gaines in 1937, wherein it was held that
the County Auditor of Harris County could take inde-
pendent contracts to audit the books of independent
school districts where such services were not required
of him as County Auditor.
          Many similar facts were involved fn.Cit and
Count of San Francisco V. Boyd (Cal. Sup. 19.d     Ins
d)='76;        The city &arter provided that 'nAil
z&+g?&;.;       and offices shall be included'in the
                 The citv made a contract to emolov an
expert on traffic controi at a.large sala ti,iakz,
recommendationson traffic planning. The'Eomptroller
objected to the contract because, among other reasons,
it failed to put the planner under -civilservice. In
holding the contract valid and in holding that he held
neither an "office" nor a Cposition,nbut was an inde-
pendent contractor,the Court qaid,
          "The proposed contractoris not to
     be placed in any osition provided for by
     the charter. He bis to e engaged under a
     contract to do a specific job~and all of
     the assistants which he will employ from
     the typist in his'office to his most high-
    :flypaid engineer are to be instrumentalities
     of his own choosing and for whom he is to
     be responsible. They do not become.city
     employees in the sense of that word, as
     used in.reference to the classified service,
     but are to be employees of the engineer
     whose contract requires that he supply the
     city with estimates plans programs and
     reports, such as wiil enable the munici-
     pality to advance the public welfare by the
     improvement of conditionswith respect to
      Hon. C. H. Cavness - Page 8, V-303
3.8
           which his services will be rendered.
                1). . . .,~Becausethe supervisorsin the
           exercise of their discretion prefer to keep
           check upon the details of the cost of the
           work to be done by the contractor rather
           than to contract for the survey to be done
           for a lump sum does not alter the fact that
           the contractor is employed as an independent
           contractorto do a specific job and to get
           for himself a definite profit."
                It is therefore, our opinion that Sections 33
      and 40 of Articie 16 of our Constitution do not prohibit
      Mr. Gubbels from taking work as an independentcontrac-
      tor while em loyed by the State Highway Department.
      Xbether Mr. iz
                   ubbels fully performed his duties to the
      Highway Department is a matter for the officials in
      chargesof that Department to decide, and for which they
      are responsible. Under Section 14(c) of Senate Bill
      317, Acts 49th Legislature, p. 945 (StateDepartmental
      AppropriationBill), it is provided that no salary shall
      be paid any person unless such person actually dis-
      charges his assigned duties.
                If Mr. Gubbels fully erformed all the duties
      assigned to him by the Highway 5 epartment during the
      hours required by the Departmental AppropriationBill,
      it was not a violation of the law for him to perform, or
      have performed,the work required on the school loca-
      tions "on his own timel1before and after Hi hway Depart-
      ment working hours. On the other hand, if i! e did not
      discharge the duties and work during the hours required,
      he is entitled to no pay for such period of time under
      the provisions of S. B. 317, supra.
                This opinion covers only the question of the
      legality of Mr. Gubbels' contract and payment as an in;
      dependent contractorby the School Board while he was
      acting and receiving pay as an employee of the Highway
      Department. The fact that the law does not prohibit
      such an arrangement should not be consideredas an ap-
      proval thereof as a matter of public policy. Neither
      should this opinion be considered an approval of the
      actions of either the School Board or the Highway De-
      partment as a matter of public policy. It is difficult
      to believe that State employees can engage in outside
      work of such magnitude without some loss of time and
 . .   .

Hon. C. H. Cavness - Page 9, V-303


thought to the State's business. Similarly, in most
cases, a School Board would not receive as much thought
and planning on such a project from one who is occupied
eight hours each day on another job. Be that as it
may, until and unless the Legislature speaks on this
subject, it is entirely up to the State Department and
the School Board to determine their respective policies
concerning the matters involved in this case.
                      .   -
                              SUNMARY
                An employee of the State Highway De-
           partment is not prohibited by law from en-
           tering into and executing a contract, as an
           independent contractor,with an independent
           school district for work to be performed
           before and after Department hours, where
           there is no incompatibilityin such work
           and no failure to.dischargeState duties.
           Such practice.is questioned as a matter of
           public policy, but until the Legislature
           speaks on the subject, it is for the State
           Department and the School Board to decide
           their respective policies in such matters.
           (ConstruingTexas Constitution,Art. 16,
           Sections33 and 40.)
                                            Yours very truly,
                                        ATTORREY GENERAL OF TEXAS



                                        W   Joe R. Greenhill
                                            Executive Assistant


                                        APPROVED:


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