                       EA        o=my              GENERAL
                               OIFTEXAS
                              AWSTIN    11.   -l?ExAs
PRICE   DANIEL
ATTORNEY GENERAL

                                December 16, 1946

           Hon. C. HI. Cavness                 Opinion No. V-740.
           State Auditor
           Austin, Texas                       Re:      The legality of full-
                                                        time salaried State
                                                        employees also being
                                                        Justices of the Peace
                                                        or ?veathermenfor the
                                                        Federal Government.
           Dear Sir:
                    Your request for an opinion by this office
          upon the above subject matter is as follows:
                       'In our audit of the accounts of one
                   of our State institutions we have found
                   that two full-time salaried employees
                   are holding at the same time other posi-
                   tions as follows:

                     1, Justice of the Peace
                     2, Weatherman for the United States
                   Government
                       "We understand that both of these
                   are only part-time arrangements that do
                   not interfers with the respective State
                   Sdtl-time jobs, but we believe we should
                   ubprr   opinion as to whether sithsr or
                   both of these instances are in conflict
                   with the provisions of Section 33 of Ar-
                   ticle 16 of the State's Constitution."
                    Section 33 of Article XVI of the Constitution
           contains the followingt
                        'The Accounting Officers of this
                   Stats shall neither draw nor pay a war-
                   rant upon the Treasury in favor of any
                   person, for salary or dompensation as
                   agent, officer or appointee, who holds
                   at the same time any other office or
Bon. C. He Cavn48s - Page 2   (V-740)


     position of honor, tru&t,or profit, qua-
     der this St&e or the Unit,eclStates,:ex-
     c4pt a4 prescribed in this ConstltutiB
     0 0 0
         Section 40 of Article XVI rays that*
          "No person shall hold or Ursroise, at
     the nmue time, n1or4 than one 01~11 offioo
     of emolument, except that of Justice of
     Paace. o aw
          A Justios of Peace is one 6f.those officers
referred to in Section 33 whers it says no persons
shall be paid out of the Trsasury who hold another of-
fice or position,, . D "except a,spresoribed in this
Constitution.w The Justice of Peace, therefore, may
hold both positions under Section 40 and be paid under
Section 33 as a State employee as an express exception.
It is assumed that no question of incompatibility is
involved,
          Your letter doas not give the facta as to
the nature of the employment of the U. S. Weatherman.
If he is simply an unpaid observer who holds no posi-
tion of honor or trust, he is entitled to his stat4
pay under Section 33, On the other hand, if he holda
3 federal appointment which is one of honor or trust,
or.one which carries remuneration, ho nay not be paid
from the Treasury for his state job, Section 33 says
plainly that a state employee may not be paid from the
Treasury "yho holds at the 'same time any other office
or position of honor, trust or profit under this stats
or the United States," Similar rulings have been re-
quired by Section 3?iwith regard to other state employ-
eea who simultanaously hold federal jobs: Agent of
C,ensusBureau (O-58); U4puty U. S. Game Warden (O-1421);
U..5, Government printer (O-3542); Viar'LaborBoard (O-
5232); civil 44rvio4 job (O-5317 and O-7813), Enclos-
ed is a copy of Opinion q-6232 which oitos mm-q of these
opiniona.



        The office of Justice of Peak4 is ex-
    pressly exempt in 84ction 40 of Article XVI,
    ,Texas Constitution, which prohibits the
    holding of more'than one offloo; A Justice
Hon.   C.   B.   C*Gesr   -   Page 3   (V-740)


       of Pease may hold another civil offioe WI-
       der Section 40 and be paid under Section
       33 of Artiole XVI for his servicer a8 a
       8tate officer or empl.ogse. Section 3'3 ex-
       empt8 from its application those office8
       also exempt elsewhere in the Constitution,
       including Section 40. (No question of in-
       compatibility involved,)
            The accounting officers of this State
       may not pay a state employee from the
       Treasury who holds at the same time a posi-
       tion of honor, trust, or profit with the
       u. 9. Government. If the U, 9, Weatherman
       in quertion holds such a position he should
       not be paid for his state employment. If
       he is rimply an unpaid observer, who holda
       no appointment, Section 3.3has no applica-
       tion, and he may be paid for his state em-
       ployment. Art. XVI, Sec. 33,
                                       Yours very   tNlg,

                                  ATTOFNEX Gl37ElW QF TEXti




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