                                                                                       :;
                                                                                            764


                    OFFICE        OF     THE   ATTORNkY     GENERAL       OF   TEXAS

                                                   AUSTIN
    ’ GROVER SELLERS
      ArrORNEY GLNLlllrL




    Penor8ble       II. A. Juisea
    cemiSdOXWe           ~jW@IIOXIt            Or m~khg
    Au attn   -     14     0’   %x8S


     De8r    Yr.   Julsm:                         opinion   Ro.   04lwT




                Iour            lottor
     i. 88 ?0110*8:




             rit    to do bu




                                                            018, 4.8 8ppF48Ob-
                                                            oplnioa regwdiag
                                                            d w OIlI'OpOOi81




             pomtlon    ~hosa home oft300 la ia lQwin,@ield,
             vhioh time   OlaOnt   08ll80S OUr inqUiW    lVll8tiVO
             to expenses    to be 00p0ooi8lYf pertinent.

                   Smhe qUeStiOXl tb8t OOllO8l'llS11s 18 Wheth4l Or
             not our ropreSsnktltos      BI8r be reimbnrmd      to tbe
             extent of expames    8otu8lly    inourred    by permitting
             the OOr~F8tiOllS   inVOlV@d    t4 is-0    their   UpenW




-
                                                                                                  .-
EonOt8ble       A. A. J8misOll - p8ge   a




      W8ttMfS    direotly   to the teprWWdc8tiVO        Ot tOptO-
      senktires,     Or does it fOllOW      tb8t 8 bill for lRlOb
     erpenaeo    mst   be diteoted     to the ootpot8tlons     in-
     volved 8nd obeok mode pal8blO t0 this dOp8ttaent
     rifb the 8meunt dOpO8ited         in the 88mO m8nnet 88
     eS8mfn8tiOn     fee8, pell81tie8 8nd other tetWUeo
     oolleoted by fhi8      drpatbent      with tbe ex8minotm
     or tepresent8tl.ter     bein     toqaltsd   to 1-t    the
     8mOU?It of theit 0181~8 4 or telmbutnl           to M.00    pet
     d8ye ph#,      O? OOPtMs     8OtU81 eXpeIJ8Om inautted      te
     tt8lls~tk~iOll      Oh8tge8.     In Chic   oonnsotiim your
     8ttenfion     is invited    to iMotIon B of the 8?otem8Pid
     Attiole.

            sYou ate further 8dvised th8f       it   h8s  been 8
      pt8OtiOe   of this Deprttment     to permit itm tepte-
      SeXltPtiVeS to 8OOept 8 oheok      from  the OOt~t8tiOns
      involved made p8y8blo     to thorn in an 8mOUnt tepte-
      Senting 8otu81 expenses      lnoutted tot many years.
      This plrotioe peth8ps b8sed upon opinion No. 551 8s
      written by the then oifioe oounssl,          the lionot8ble
      Oole spoet.    We h8Te tOd8y tete8d th8t opinion and
      8s indlO8bd    To feel the need Of 8 018tifJing          ex-
      ptessio?I te the subjeot in 8drMoo        Of 8 speoial 8s-
      signment   fo examiners   of this deprttatent glbt8Oing
      the 81u1~81 teTieT 8s t0 the~8OnditiOn         Of the k0
      cotpot8tions   involved.     It follows,     of course, th8t
      in tespeat to the pt8otiOe hetein8bove           mentioned   no
      0181~1 for expenses h8s been filed rlth the State b7
      the ex8mlnet8   lnvolvad   in aonneotion      with euamina-
 <    tions rde,    oinse 88 stated the OOtpOt8t+iOns h8te
      p8id the full 8mount of the expenses          ineutted        diteot
      to the ex8mlnets    eng8ged In the 8nnu81 terievs.

            'YOU 8te further 8dVised fh8t this subjeot                m8t-
      tat 18 Of ~peOi81 oonoetn t0 us by te8aOn Of the
      f8Ot th8t We h8Ve 8OtU81 knowledge           Ot the eXtt8Otdi-
      not7 expanses rhioh 8te involved           in 8 trip beyond
      tbe borders    of out St8te of the n8tute hatein               des-
      otibed.    Thus Ii it should be bold th8t suah ex8m-
      inets will bo limited        to 8x1 expense 8006un1nt O? M.00
      Pot d8y - OOtoting       me8ls, 8OOOm!EOd8tiOns       8nd other
      items, We sh8ll foe1 disposed          to @TO     spOCi81 OOUdd-
      et8tion   to Efeotion 10 of Atffole 15248 which h8s to
      do with   the  8OOeptinOe     on out  p8tf   Of   eX8ldn8t.iOn      te-
      potfs 8s nnde by other qenoles.             This,   We think,
      would be neoess8ty        in aonsidet8tion     of the thougbt
ionOt8blO     Il. A.   Judson      -   p8ge   8




      that    to      one of out exuinete
                   8m&g1                     to nuke  the ax-
      uln8tione  dosotibed  on 8 b8eie Of $4.00 pet d87
     8110T8~Oe  would be knt8mOUnt    t0 requiting   th8t ex-
     mnlnet ot'ox8minets   to 8bsotb 8n out OS pocket ex-
     pense that would likely inTOlT8    mote than $200.00.

            sPtooeedlng,    theteiote,     to o ut lea o ndInquiry
     8Ud In oOntempl8tiOn       Of the thought th8t       itm8y     be
     held Sh8f the $4.00 limitation           8ppliO~ rnd th8t the
     ootpotatione    inTOlT8d must      pay the department       di-
     teotly the raount of expenses          InOutCddr    is the 18~
     gu8ge of Seation 10 of fihe 8fOteinWtiOned             8ttiole
     suS?ioientl~    bro8d in its etlpulations as to justi-
     fy this orrioe in foregoing         Its pt8otiae      to ex8mine
     the aotpot8tione     inrolted     and aooept in lieu thete-
     Of Pn OTW-811      oXamin8tiOu     topOtt    88 made by other
     8genoiesb     fe use the word 'otet-all'          delibotrt,el~
     for such reports do not gire speaial 8ttention                to
     the position    of an lndiridual        St8te, but t8thet 8s
     iudio8tOd    Ombt8Ce tb0 genetal 0Otpotat.s p0siti0~.

              "Out     om   examineto,   in teepeat    to their examlna-
      tiOn    Of   +h388    OOtpOtatiOnS,    being OOtpOt8tiOns      that
     h8TO     issued 8nd sold t0 Tex8S OitdZonS            their inVest.-
     ment oettlfiaote8         in   amounts 8ggtegrtlng      several mil-
     lions OS dOll8ts,         OOnoOntt8ta      p8ttiOUl8tly    upon the
     oonttols      that 8x-e established        8s to the ootpot8to
     118bilitJ      t0 TeX8s oreditors        and eanII8tked 8ssots
     pledged Sot their ptoteotinn~             with 8 speaial TOtify-
     ing ptOOedut8       made 8 p8rt Of 08Ch oxamin8t.ion.            FUt-
     thermore,      8s m8y be knOWn t0 Your own Judge Bpest,
     the assets so pledged Sot the benefit of Texas                  oted-
     itote 8re held by the St&9              %'telrsWat or 8 %X88
     trustee.       In respect to the 18tter it la the policy
     of our examiners         to obtain listings from the trustee
     before le8Ting for the home offloe of the ootpora-
     tion, this       listing h8Ting to do with         8ssets pledged
     8nd #f?iOiOntlj          ooaplete 8s to enable thorough Teri-
     Tio8tion with        the  teootde m8int8inOd       in ui11Es8pOlis.
     We rarely mention         tbie pb8mOf       the ptoaedute     to am-
     pb8dSS       tb8f my     report which     we might 8COept from
     8nOtbOt      8gOUOr rould f813 f8t 8hOtt Of the OOmplOte-
     noes     outlined    shore insOf8t 88 Texas creditors           8re
     oonoernod,      and it ooaurtod        to us th8t this     referents
     to out exaain8tlon           ptocedute   might hare some besting
     in the oonsidetatlon           of the question     ia~olred In Seo-
     tion     10 of the Aot..
                                                                             ,
                                                                                 767
Honot8ble   A. A.   J8StiSOn - page     4




            Seotion 1 of Artlole 16248 defines   the            0188s of oor-
porations   embtaoed within  the L68U rad Bioke+8ge             COap8nles Aot.

            Sootion    a is 8s ?ollows:


             vhe'68nklllg      Cosmdedoaer       OS teX8S eh811      ox-
      amine or 08uie       to be exdnod         suob eOtpotatdOn8
      8nnu8lly      or oftenet if he deems If neoee88ty.
      Said    OOtpO+8tiOll ah811      p8I   the 8OtU81   tt8TSlin6
      expe8eeer      hotel bill's, and 811 other lotu81 ex-
      pense inoident       to mch     exminatioa and 8 fee not
      oxoeedlng      Twenty-five     Dollats~($25) pet d8y pet
      person engaged in such examination.               IS suob aot-
      potation hrd not sold In TeX8s its bonds, notes,
      oottiSloites,       debentures,      et other oblig8tlons
      8nd does IIOt Offot       ?Ot s818 Ot 8811 in TOX8s its
      bonds, notes, oett1?1oates,            debont.ures or other
      oblig8tione,       the Banking     Comnlesionet    of Pex8er
      in lieu of an examination            shall 8ooept 8 Sin8n-
      0181 lt8t,ement. mode on suab form, containing                such
      idorm8tion        as he desires.        Guch fess, together
      rith any other Sees, penalties             or terenues      ool-
      looted by the Commissioner            pursuant to the pto-
      lidons      of this Aot or pursuant         to other lors of
       this State tel8tire        to corpot8tione      under the
       mpWTi8iOn        of the Banking      Dopattatont, ah811 be
      paid by the Commissioner            to the State Tt08mWSt
       to the otedit of the &3net81 ROToUuO             Lund.      The   /
      expenses of examin8tion           and of the.Cormnissionet
 \    in enfotoing       the ptoTisiOus       of this Aot ah811 be
      p8id upon tho aettifioate            of the Commissioner       by

      utj.*
      r8ttPnt of the CompttOllOt            upon the 6t8tO TtePs-



          Foreign corporations,    such 8s those inTOlTOd   in your
inquiry,   orp;ani8ed under the laws of 8nOtbOt    st8ter 8tO per:-
mitted   ,,O do business  in Tez8s only 88 proTided   in Ch8ptet 19
of the BoTioOd    CiTil  St8tutOs of SeXas, 8nd this   nee88Mtilf
means they 8tO to comduot      suah business in Texrs in 8oootdanoe
ritb and subject to the 18TS of TOX8a.       11 Tex. Jut., Cotpora-
tiOns, e 178.

        Such permitted  ootpot8tions   h8To been under the super-
Tision of the B8nking  Department   for m8ny years, during wbiah
time they h8TO been tegulrrly   examined by the Dop8ttznent'e ex-
honorable        II1 A. Jamiaou-     page   6




amlnsrs,     where they bare ieeued and sold their bonds, notea,
oertliloatesr      debentures , or other obligations         in Texas.    The
reason ia not far       to seek.      It Is the proteofion     of the pur-
ohaserx     in Texas of the      oompanies'   obligations    sold bore.
The   examination    is  neoessar~     to the  proper   maintenanoe    of
the seourities      put up by such companies,         under Iteotlon I of
the Aot.

           Sooh ferelgn  oorporation   18 epeoially made               arbjeot
to exsmiaation  of. the Banking  Commissioner   of Texas,              under
penalty of forieiture   of its penslt by the terms     o?             seation
10 of the Aot.

            As pointed out by y@u, It has been the praotloe       of
the Banking Denartment,     under its aonstruotion    of the perti-
nent statutes,    to aolleot from   maOh out-of-&ate    oorporation
all the fees presoribed     by statute , and likerise   the expenses
such as travel, hotel, meals and the like, from out-of-state
aorporatloa,   paying the fees into the State Treasury as pre-
scribed by Seotion 2 of the Aot , and applying       the expenses   to
reimbursing   the examiner for his    actual expendlturos    In oon-
ntation sitb such examination.

                  Opinion X0. 361 by your       offloe   counsel   referred     to
by       you,   is as iallorsl

                 *In the matter of superVision        of Building
           Loan Associations    and Loan d: Brokerage     Companies,
           you are sometimes    called upon    to  qo beyond    the
           borders of the State, incurring        extraordinary     ax-
           penses and the question      presents   itself whether      '
     c     or not such expenses     may be paid directly      to you
           by the institution    involved in the examinatinn
           or investigation,    as the ease may be, or whether
           or not such matter is within the statute of fees
           and expenses0    Undoubtedly     it Is tha sound pub-
           lie policy, and therefore      the law, +hat the com-
           pensation,  whether   salary   or fees, of public oP-
           fiaers is made matter of statute and the compen-
           sation there provided      Is, of coarse, aonollr8ire
           of the compensation    and exoluslre     of any other.

                 "In other words, a pub110 official is en-
           titled only to such salary   or oompensation  as
           is clearly provided for in the law creating his
           office and fixing his  aompensation.    See my Opln-
           ion S2 to the Banking Commissioner    of date Deoem-
           ber 6, 1923.
Boporable   8. A.’ Jamiwn   - page   g




           stbo item of expenses of aa ottiolal     in-
     ourred by him in hi8 offioial    oapaoitr,   is in
     essenoe publie.   An o?tlaial   ordinarily   oannot
     per?orm his official  duties oufslde     the limits
     of the Stata under whose authority     he sots.
     ills rots beyond the territorial    lim%ts, there-
     fore, being extra o??ioial,   are not gooterned by
     the lar rith respeef te ot?lolal     duties.

           s?he prinelple     is illustrated    in the la8
     of reTardm*     It im the g e ner a l     lly
                                               ooepted doo-
     Wine that when a publle officer performs the
     servioes for mhieb a reward Is offered, by sots
     outdde    the soope and line of his duty, there
     la no rule of publlo polioy whloh forbids his
     olalming   the reward and henoe he is entitled         to
     it.   Karling vs. Morris,      (Tex.1 9 8. '1. T3S,
     Tobin YS* MaComb, 168 8. W. 267, 64 C. J. IBE,
     Sea- 32.    The rule of publio polioy forbidding
     extra   oompeneattion  from private     wuroes    to pub-
     110 ot?lolale     for performing    their ottialal    du-
     ties, lppYles generally      to rewards.      Benoe the
     analog    between rerards and expenses or oompen-
     satlon is a good one.

           'Undoubtedly,    the law might Impose upon a
     state ot?lolal    the speo%?lo Qu~tyM     psr?omihC;
     eerrioe~~begond     the State line, when of aourse,
     the rule prohibiting     extra compensation    rould
     acplr*    The real test, therefore,    lies In the
     nature of the services performed.        It the ser-
     rioes pertermed    be outside   the scope and duty o?
     the offloer,    he may acoept  prirate   Oompensation
     or expenses, but I? suoh services be rithin the
     scope of his ot?ioial     duty, he may not do w.

           .T’bere is Involved    in euoh matter a possi-
     ble ethios that would forbid a public ottloial
     to looept oompensatlon     or expenses in aonneotion
     even with an aot entirely      beyond his offloial
     duty, if moh aot im in the general nature o?
     his official dutiesa     ldentioal   with that of com-
     pensation    and is governed by preoisely    the same
     prinoiple.

            lBy the General Appropriations      Act   of 1938
      (General Laws 44th Leg. Reg. Sesa.       page   1001)
Honorable     Ha   A.   Jar&son   - page   T




      your oompeneation     am superrising   examiner    18
      definitely     fixed and the same is to be paid
      only from tees or aeseamsents       oolleoted   from
      the institutions     under supewIsion~      Snob tees
      and assessments     from xhiob your   compensation     la
      to be paid, are OxpremslT      appropriated   by the
      Aot.   Therefore,    your ooapensation,    whether    ul-
      ary or expenees, I# payable threugb the ordinary
      ohannels    provided for the payment out of pub110
      ?undm.

              .Tberule of pub110 polioy would forbid,
      therefore,   that you reoeire    oompensation   or
      tees from   any person or in any other ray, with
      respeot   to your official   duties then that speolt-
      ioally provided in the statute.        It ma7 happen
      and often does happen that you are oalled upon
      to perform an ottioial     aerrloe   for which there
      IS no speoiflc oompensatlon      made In the law. Such
      a eerrioe $8 z o??iCio and is iaposed upon you aa
      a publio officer, without compensation        other than
      the general oompensation     lttaohed to the offloe.
            sTbe application   of these principles   would
      forbid your looepting any extra remuneration       from
      any private institution    for the pertormanoe   of
      any otfloial duty*     But this adrioe is Tolunteered
      since you hare not asked me any mch      question.

            sI am of the opinion, hoverer,        that inso    far
      as is lnrolred the question      of expenses    inourred
 \    by you out&de     the State of Texas, the statutes of
      compensation   hare   no application.     In  other words,
      the statute and rule of public policy deal with
      the performance     of official  duties, but this oon-
      sideration   is purely, I think, one of ethlos and
      propriety   involving   to no extent rhaterer      any quee-
      tlon  of regularity    or legality.    Personally,    I Can
      see no Impropriety     in an ottlcial accepting      remun-
      eration   to the extent o? aatual expenses inourred
      by him In periormlng     a serrloe entirely beyond his
      actual ottlolal duties, even though such servloe be
      in tbe line o? him ordinary      ottiolal    duties when
      within his State..


               It is the opinion of this Department  that the praotioe
and policy      heretofore followed by your Department  Is the proper    I/
one.
gonoable    tl. A.   Jamlwn   - page    b




            Beation 2 of the Aot,alreadp      quoted herein,     requir-
ing  feea, penalties    and revenues   oolleoted   by the Coxanlsslon-
or to be pald~ to the Mate      Treasurer   to the oredlt of the
General Rer,snue Fund, as has already been stated,         has at ail
times heretofore    been follored by your Department,        as We un-
derstand   tbe aituaticn,   but the lotual and neoesaary        expensea
inourred bV the examlnar,      auoh aa hare heretofore     been men-
tioned, hare not been thus paid into the Treamwy,            but hare
been applied by the examiner       to the llquldation   of his olaim
for expensemr    and no olalm or olalms theretor hate at any
time bean made against     the Treasury or been paid by t&e
Trea snrer.   This,  we think,   ia in looor&noe     and perfeat
keeping with tbs statutes , for emah aotual and neoeocarT
expense8   are not *fees, penalties “or relenues      oolleoted    bV
the Gomissioner’,     under the statutes.

           The statutes,   provisions  of appropriation    Aots,
court dealsions   and departaaental opinions   with respeat to ex-
penses o? out-of-state    trips upon State business    hate nothing
to do with the question    under consideration,    sinoe such expen-
sea are not paid out of the Treasury.      lo statute, approprla-
tion rider, oourt opinion, departmental      opinion,   or publia
policy whatsoever   is violated by the oourse of your Depart-
ment here approred.

                                       Very   truly    yours

                                ATTORHgY      G~NERALi$F TEXAd

                                BY                     o*$e&/+

                                                  -.    Assistant
                                              /
