        THE       ATTO~~-EY           GENERAL
                      OF      TEXAS




Hbnorable J. P. Gibbs, Commlssfoner
Casualty InsuranceDivision
Board of Insurance Commlssloners
Austin, Texas
Dear Mr. Gibbs:                Opinion No. 0-5896
                               Re: Whether tinemployee of the
                               State Insurance Commission,who
                               performs certain'dutiesworking
                               full time, as required by law,
                               in that particular posltlon may
                               draw compensationfrom the State
                               for this additionalwork before
                               or after the hours he works in
                               the regular position.
        You vrite us as follows:
        "In my department, I am confrontedwith a
    very serious problem in that after March 1, 1944,
    at least one of the members of my technical
    staff in a key position will no longer be with
    me because he is entering the armed services.
    For quite sometime, it has been a real problem
    for my small department to operate and try to
    supervise as Is required by law. The casualty
    business during the past year amounted to ap-
    proximately $~O,OOO,OOO in the State of Texas.
    Even In ordinary times, it was difficult to find
    available men qualified in actuarial science.
    It is absolutely impossible, insofar as I can
    determine, for me to obtain anyone qualified in
    this particular field of insurancewhLch is ab-
    solutely essential to the performanceof the
    requirements Imposed upon my department by lav.
        "To give you a very specific case, the Read
    Of my Automobile Insurance Sectlon, besides his
    actuarial capacity, must have the ability to
    know contracts and be.able to,draw up instruments
    to afford coverage required by the policyholders
    who pay normally $30,000,000 in automobile Ln-
    surance premiums. This department,as you know,
    la required to prescribe standard policy forms
Honorable J. P. Gibbs - page 2          0 -5896


      for vorkmen's compensationand automobile lnsur-
      ante together vlth all the endorsementsto be used
      In connectionvith the writing of such business.
      We now have more than 200'endoMement forms &lone
      In the Automobile Insurance Section. Th6 Head of'
      that section has been called Into the armed services,
      and I have pledged niyvora, as has been done by .
      business and governmental Institutionsgenerally,
      to bald the~posltlotisfor the boys -enteringthe
      armed services In order that they might occupy
      such positions If and when they return. To my way
      of thinking,taking these boys back Into their -
      positionswhen they return Is a fundamentalAmer-
      ican prlnclple.
          "The members of my technical staff during the
      last year particularlyhave worked falthfnllyand
      dlllgently to perform the duties required. This
      serious problem presents to me the questlon of
      whether I can pay the present Head of the Workmen's
      Compensationtechnical staff who Is highly quall-
      fled for either of these two key positions part of
      the salary appropriated for the Director of Auto-
      mobile Insurancebased on the number of overtime
      hours he puts In on this job and at the same time
      pay him the full amount of the appropriationfor
      the job he occupies principallyas Chief Actuary of
      the Workmen's CompensationSection to which he
      would give at least eight hours per day of his
      services.
          "Section15(b) of the current appfoprlatlon
      bill ,(Senate
                  Bill 332) passed by the last session
      of the Legislature Is somewhat ambiguous. I should
      like, therefore, for you to advise me on the fo.l-
      loving question:
          "Could an employee vho performs a cer-
        tain duty and working the full time as re-
        quired by law In that particularposition
        draw compensationfor this additionalwork
        after or before the hours he vorks In the ~~.
        regular posltlon? The additionalvork per-
        formed after hours Is not In line vlth his
        regular work. _.
          “AS this Is a very urgent and importantmatter,
      I~res~ectfullyrequest your opinion at an early
      date.
  2
,   .




        Honorable J. P. Gibbs - page 3        O-5896


                Section 33 of Article XVI of the Constitutionreads
        In part as follows:
                "The accounting officers of this State shall
            neither draw nor pay a warrant upon the Treasury
            In favor of any per&on, for salary or compensa-
            tlon as agent, officer or appointee,vho holds
            at the same time any other office or position of
            honor, trust or profit, under this State or theme
            United States, except as prescribed In this Con-
            stitution.* 4 4 4 4.”
               We think your question construed In the light of the
        specific Illustrationglven by you, should be answered ln the
        negative.
                The director and actuary of your Motor Vehicle Insur-
        ance Section (Item 26 In the current approprlatloiibill) un-
        doubtedly is anagent or appointee,within the meaning of Sec-
        tion 33, above quoted whose compensationIs fixed In the
        appropriationact at $4000.00 per annum.
                The other position mentioned by you, the head of the
        Workmen's Ctimpensationtechnical staff -- actuary and chief
        clerk -- is lIkewIse a position as an agent or appointee, '-
        whose compensationIs fixed at $4000.00 per annum by the ap-
        proprlatlonact, and both are positions of honor, trust and
        profit. So that It would follow perforce of the express terms
        of the Constitutionthat one occupying either of these posi-
        tions would be forblaaen to receive compensationfrom the
        State for services performed in the other. In truth, vhlle
        occupying both position8 he could be paid for neither.
                The situation and principle here dlsciissedhas been
        thus stated by First Assistant Attorney General, C. U. Cureton,
        afterward Chlef Justice of the Supreme Court, as follows:
                "An analysis of the above quoted section of
            the Constitutionresults In the following:
            That the accounting officers of this State are
            prohibited from drawing or paying a warrant upon
            the treasury In favor of any person for (a) salary,
            (b) compensation;as (1) agent, (2) officer; (3)
            appointee, lf such person at the same time holds
            any other (1) offlce, 2 position of honor, (3)
            position of trust, or II
                                   4 posltlon of proflt, under
            this State or the United States.
                "Mr. Uayes Is the Lieutenant-Governorof this
            State, and under the Constitutionas above quoted
       Honorable J. P. Glbbs - page 4        0 -5896


           and discussed that la an office. It is llkevlse
           a position of honor and trust, and while It could
           hardly be said, owing to the very nominal salary
           paid, that It Is a position of profit, yet there
           1s a compensationattached to the office of Lleu-
           tenant-Governor,which, be It great or small, Is
           Intended as.8 remunerationfor the time devoted
           to the office.
               "It is very clear, therefore, that &.. Hayes,
           so long as he is Lieutenant-Governor,could not
           under the Constitutiondraw pay from the State,
           ,a~~:;)agent, (2) officer, (3) appointee of the
                .
               "As we have above endeavored to show that a
           professor In the University of Texas is an ap-
           pointee, or lnallmltea sense an agent, there-
           fore, Mr. Mayes could not draw a salary from the
           State as Professor of Journalism in the University.
               "The converse of the above proposition Is
           also true, and, therefore, Mr. Mayes, so long aa
           he was the agent or appointee of the State as a
           Professor of Journalism in the University, could
           not draw his pay as Lieutenant-Governorof the
           State, that being an office within the meaning of
           the Constitution.
               "Therefore,should Mr. Mayes accept the posl-
           tlon of Professor of Journalism in the University
           and at the same time hold and exercise the duties
           of the office of Lieutenant-Governor,he could
           not draw pay for either such office o* such posl-.
           tlon." -- Opinions of Attorney General 1912-1914,
           p. 880.
               Further analyzing the Constitutionand expounding its
       meaning as to those servants of the State coming within its
       scope, that opnlon declares:
                "The State can only act through representatives,
           and such representativesare divided Into tvo classes
           primarily. The first class Is that of officers,who
           may be either elected by a Vote of 'thepeople or re-
           ceive their commissionsby appointment by virtue of
           some provision of the Constitution or statute,who
.-,.
           take the oath of office and are generally required
           to enter Into bond for the faithful performanceof
           their duties 1 and such other obligationsas~;are
Honorable J. P. Gibbs - page 5         O-5896


    Imposed by the statute and who exercise some func-
    tion of government.

        "The second class In the broader sense des-
    ignates all other servants of the government as
    employees of the government or some of its agencies
    or lnstltutlons, who hold their position by reason
    of contract made and entered Into by and 'between
    such person and some officer or agent of the State
    government who 1s authorized or directed to make
    such contract by some provision of the Constltu-
    tlon or statutes of the State. Such employee
    takes no oath and executes no bond and may be
    discharged at the pleasure of the appointing power.
    The tenure of his position Is fixed by the con-
    tract made and entered Into between such employee
    and the appointing power, or It may terminate
    according to the contract at the pleasure of the
    appointing power.
        "Under one or the other of the above two
    classifications a professor in the University
    must fall; that is, he must either be an officer
    of the State or he must be an employee, and we
    will now direct our attention to fixing the status
    of a professor aspone or the other." -- Opinions
    of Attorney General 1912-1914, p. 874.
        That opinion has often been cited and quoted, and ve
think It represents the true construction of the Constitution.
         We appreciate the stress of present conditions as ft.
~affects the admlnlstratlon of the affairs of your department,
-to be sure, but exigencies of whatever magnlttiaewill not
 justify vlolatlon of a plain constitution.
                                 Very truly yours
                             ATTORNEYGENERAL    OF TEKAS

OS-MR-WC                         BY s/Ocle Speer
                                      Oole Sp6er
                                       Assistant
APPROVED MAK8, 1944
s/Gee. P. Blackburn
Acting--ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BwB Chairman
