                     TIEEATTORNEYGENERAI.
                                   OF-XAS
                                  AUSTIN    xx. TEXAS
 GROVERSELLERS
*TroRxEY     GENERAL




    Hon. Stansell   Bryan
    Criminal Distr,ict   Attorney
    McLennan County
    Waco, Texas

    Dear Sir:                              Opinion   NO. O-7318

                                           Re:   Whether or not it is lawful
                                                 for a member of the Texas
                                                 State Legislature   to work for
                                                 the United States   Public Health
                                                 Service  as a Supervisor   of
                                                 Typhus Control.

                 Your letter  of recent date         requesting   an opinion    from
    this    department   on the above subject         matter is   as follows:

                  "I would appreciate     It if you would advise me
           whether or not it is lawful       for a member of the
           Texas State Legislature      to work for the United 6tates
           Public Health Service      as a Supervisor  of Typhus Con-
           trol,   provided such member of the Legislature      does
           not draw a federal    salary while the Legislature      is in
           session."

               In answer to our letter   requesting  certain           information
    concerning    the position mentioned  in your inquiry,            we received
    the following    from the United States   Public Health           Service:

                  "1 . Mr. Sam Sellers    was employed off of a
           regular    Civil Service  Register  by the Federal Gov;
           ernment with a classification      of Engineering  Aide,
           SP-5.

                  "2 . His title  of classification     was Engineering
           Aide,.SP-5,   when he was employed,      and he still   held
           that same position    when he resigned.      His duties   were
           to work with a dusting    crew on our Typhus Program.

                "3 . He received a salary         from the Federal      Gov-
           ernment and not from the State         Government.

                    "4 . Yes, he took an oath of office    the      same
           as all     other Federal  employees when entering        on duty.
                                                                                            -,




Hon.     Stansell   Bryan,    page 2                   O-7318



              “Mr. Sellers    resigned      this       position    on June 21
        1946. ”

             Article    16, Section       12,    of    our State   Constitution      pro-
vides     as follows:

               “No member of Congress nor person holdlng,r
        exercising   m   office    of urofit   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 Tf?oe   of profit  or trust under
        this State. ”

            It is generally   held that the most important      character-
istic   which distinguishes    an office   from a position    is that the
creation    and conferring   of an office    Involves  the delegation     to
the individual     some of the sovereign     functions  of government.
See 34 Texas Jurisprudence,       pp. 322-326;    Mechem on Public    Offices,
9 g b-10; Kimbrough v. Barnett,        93 Tex. 310, 55 S.W. 122; and
CornmiSSIoners Court of Limestone County v. Garrett          (Commlsslon
of Appeals)    236 S.W. 970.
             We quote   the   following         from    the Limestone    County   case:

            “‘The most important          characteristic        which dis-
    tinguishes      an office      from an employment or contract               is
    that the creation          and conferring       of an office       involves
    a delegation        to the individual         of some of the sover-
    elgn functions         of government,       to be exercised       by him
    for the benefit         of the public;        that some portion        of the
    sovereignty       of the county,       either     legislative,      execu-
    tive or judicial,          attaches,     for the time being,         to be
    exercised     for the public         benefit.     + + * In distinguish-
    ing between an office            and an employment,         the fact that
    the powers in question            are created      and conferred       by
    law is an Important criterion.                 For, though an employ-
    ment may be created           by law, It is not necessarily             so,
    but is often,        if not usually,        the creature       of contract.
    A public     office,     on the other hand, is never conferred
    by contract,       but finds      Its source and limitations            in
    some act or expression            of the governmental          power. * * *
    Public officers         are usually-required          by law to take
    the oath of office,           and this fact goes far in determin-
    ing the character          of the duty.        But the taking of the
    oath is not an indispensable              criterion,       and the office
    may exist without          It, for,    as has been said,         the oath
    is a mere incident          and constitutes        no part of the
    office.     * * + If a duty be a continuing                one, which Is
    defined     by~rules     prescribed     by the government,          and not
    by contract,       whLch an individual          is appointed      by gov-
 Hon.    Stansell     Bryan,     page    3                0 -7318



        ernment to perform,         who enteres    on the duties     per-
        talnlng     to his statlon     without any contract       de-
        fining     them, if those duties       continue   though the
        person be changed,        it seems very difficult       to dls-
        tinguish      such a charge or employement from an
        officer.     * * * At the same time, however,          this
        element of continuance         cannot be considered       as in-
        dispensable,      for,  if the other elements are pre-
        sent,    It can make no difference         whether there be
        one act or a series         of acts to be done, whether
        the office      expires   as soon as the one act is done,
        or is to be held for years,          or during good be-
        havlor.'       Mechem on Public     Officers,    g f4 4 to 8.

                "'Public    office     is the right,    authority,      and
        duty created       and conferred      by law by which,       for a
        given period       either    fixed by law or enduring at the
        pleasure     of the creating        power, an Individual        is
        vested with some portion            of the sovereign      functions
        of the government to be exercised              by him for the
        benefit     of the public.'         The correctness     of this
        definition       is nowhere questioned,        so far as we know,
        and it is useless          to add supporting     authorities.'
        Kimbrough v. Barnett,            93 Tex. 310, 55 S.W. 122.

               "'A man is none the less a public     officer    where
        his authority    is confined   to narrow limits;     for it is
        the duty of his office      and the nature of that duty
        which make him an officer,      and not the extent of his
        authority.'"    Mechem on Public Officers,       El 9.

             We have carefully     considered    the duties   of the position
 of Federal    Engineering    Aide, SP-5 in the light       of the foregoing
 authorities    and it is our opinion       that such position    does not
 constitute    an office   of profit    or trust under the United States,
 but constitutes     a position    of profIt    or trust under the United
 States.

             We'call your attention,    however,                to Section 33 of Article
16 of    our State Constitution   which provides                 in part 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   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 pre-
        xed         in this Constitution."

              There    are     certain       exceptions    provided   in the   foregoing
Hon.      Stansell   Bryan,      page   4                o-7318



Section    which,      however,     are     not   material        to the   question   under
conslderatlon.
                                                        .
               Our Opinion No. 0-2607             in construing        Section     33 of
Article       16, stated  the following:

               "It Is clear       that this section         does not seek
       to prohlblt        the serving     of the State by one inai-
       vldual     In more than one capacity.              The provision
       addresses       itself   only to the matter of compensation.
       Thus, a man may hold two offices,                 or an office      and
       a position        of honor and trust under the State,               If
       no compensation         attaches     to either     place.      But If
       he holds an office,          or is an agent or appointee,
       and to such place compen sation                attaches,     he may
       not be paid for services             rendered     in that capacity
       during the period          of time that he holds another
       position      of honor or trust under the State or the
       United States.          From this general         statement     as to
       what the section         does and does not prohibit,             we
       gather the general          policy     embodied therein.         This
       policy     seems obviously        to be that no person should
       receive     compensation       from the State for services             to
       be rendered        it, when during the time such compensa-
       tion is to be earned such person,                 by accepting      and
       holding     another position        under the State or the
       United, States,        has obligated      himself      to render
       services      In connection       with the latter        positlon,
       so that he may not render full                value in the first
       capacity      for the compensation          which the State has
       agreed to pay.          So construed,       we find that the
       Section     is but one of the many in the Constitution
       seeking     to place every conceivable              safeguard    about
       the expenditure         of State monies.          So construed,       this
       Section     seeks to avoid even the possibility                 that
       the State may not receive              a full   quid pro quo for
       expenditures         by way of compensation          for services      to
       be rendered        in one capacity,       by reason of the person
       serving     In that capacity         placing     himself    in such a
       position      that he may be tempted to neglect                the
       duties     of the one place for the responsibilities
       of the other."

               We quote    the    following       from    our Opinions       No.   O-5317:

                "If the place in the Federal     Civil  Service    is an
        'Office',    then, upon accepting    and qualifying     therefor
       the member of the Legislature       will automatically        for-
       feit    and vacate his office    as member of the Texas Leg-
       islature,     perforce  of the provisions     of the Constitu-
Hon. Stansell    Bryan,   page 5              O-7318



    tion,    Article    16, Sec. 12.       If the place in the Federal
    Civil    Service    is not an 'office'        but a 'position'      of
     'honor      trust    or profit',    then, under Sec. 33, the
    member if the Legislature           could not be compensated         as
    such If, over the period for which compensation                  as a
    member of the Legislature           was claimed,     he also held
    the place in the Federal           Civil   Service.     Since members
    of the Legislature         are paid per diem only for the days
    during which the Legislature             Is in session,     the member
    of the Legislature         would not prejudice       his right    to
    compensation       as such if he held the position           in the
    Federal    Civil    Service    only during periods        in which the
    Legislature      was not in session.          Sec. 33 deprives     the
    officer,     agent or appointee        of the right     to be com-
    pensated with respect          only to the period during which
    he holds another office           or position     of honor, trust
    or profit."

          In view of the foregoing,    it is our further     opinion  '~
that a Legislator    cannot receive  any compensation    for his ser-
vices  as Legislator   while he holds the position    with the Federal
Governmeik referred    to above.
                                      Yours   very   truly

                                   ATTORNEYGENERALOF TEXAS

                                      By   s/J.C.    Davis,   Jr.
                                              J.C.   Davis,   Jr.


                                      By   s/John Reeves
                                              John Reeves

JR:djm:wc


APPROVEDAUG 12, 1946
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEYGENERAL
Approved    Opinion   Committee   By s/BWB Chairman
