                   ,~~~EATTORNEY               GENERAL
                              OF-TEXAS

PRICE   DANIEL
.4TTOR?awGENERAL
                               September 22, 1952

           Hon. Larry 0. Cox
           Executive Director
           Board for Texas State Hospitals
             and Special Schools
           Austin, +xas             opinion. HO. V-152j
                                         Re:   Construction of Texas
                                               Constitution, Article
                                               XVI, Sections 12, 33,
                                               and 40, as applied to
                                               certain employees and
                                               contractors who are
                                               receiving compensatlon~
            Dear’‘iI9O Cox:                    from the uuited States.
                       You have requested the opinion of this of-..
            tlce~ on the following questions:
             .
                            Is it In violation  of the’Constitutlen
            to employ kd pay a art-time       employee. at the Big
                                  P
            Spring Statue Hosplta who is also drawing pay as an
            enlisted man in the armed services of the United
            States?
                       2. Is it in violation  of the Constitution
            to retain on our payroll a doctor who in no way neg-
            lects his duties to the State of Texas but who does
            after duty hours, act as an lndcpendent contractor )or
            the Veterans Administration (in this IdStanCe Di’. Rap
            C. Sloan of the Big Sprlng State Hospital)’ without
            monetary profit being received from the Veterans A&al&
            istratlon. f.or his services?
                      3* If your answer ‘to quest%on nQo@er two
            above Is In the afflr~matlvep .would 'It ‘differ. If Dr.
            t;yn; drew oompensatlon from the Veterans Admlnbtra-

                       4,  I8 it In violation  of the Constltutlem        .” ‘..
            for the Big Spring State Hospital to utlllse   the aer--~    .. .,,~.
            vices. of an Independent contractor and pay him not as
            an employee but on a purchase* vouoher, when such a per-
            ron 18 on the    yr&l$ of the Veterans Admlnlstratlon
            as an employee I@    e 09 Dr. Ca W. Atherton.)
HOII. Lury   0, Cox, page 2 (v-1527)


             5. .Is It in violation of the Constltutien
,.for the B$g ‘Spring State Hospital to utlllee  the ser-
  vices of an independent contractor and pay him not a8
  an employee but on a purchase voucher, when such a
  person is in private practice and 1s not an employee
  of the Veterans Administration but does draw compensa-
  tion from the Veterans Administration as an independ-
  ent contractor as consultant?    (E@g.,Br. J. C. Banker.)
            6. Is It In violation   of the Constitution
 for the Rexla State School and Hometo retain on Its
 payrolL four employees who are ex-servicemen of World
‘War 11, who are attending Veterans .4dminlstratlon
 School at night and of course, drawing compensation
 from the Veterans Aiminlstratlon for such training?
                                     .
            7. In construlng both Sections 33’.and~40
 of Article XVI0 is it unconstitutional   t6 employ any
 of the above categories’of   persons when they are pres:
 ently In the Rational Guard, the Rational Guard Re- ‘
 serve9. or the Organized Re.serves of the United States?
          .There are three se&ions of Article xVI’of
the Texas Constitution which .relate to,the subjeot  :
matter. of these que~st1ons.a Seotlon 12 statea:
            “lo memberof Congress nor person
      holding or exercising any o!flce of profit
      or trust   under the United States, er el-
      ther of .Ihem, ‘or umder amy foreign power,
      shall be elig%ble as a notuber of the Leg-
      irlature   or hold er exercise any offloo
      of proi    or trust under this 'State.n
section   33 provides:
            “The Accounting Officers of thi.s
      Stats shall.rrelther draw nor pay a warrant
      upon the Treasury in favor OS any person
      for salary or comp6nsatl,oa ,a8 agent, offi-
      ce*. or appointee who holds at the same
      time any other ojflce    or position of honor,
      *rust or profit,    under this State or the
      unlted States, excrpt.as prescribed In this
      Constitution.    Provided, that this restric-
      tion as to the drawing .aud paylmg af’ war-
      rants upon the Treasury shall not apply to
      officera of tbs National Guard of Texas,
.   ,   -




            Hon. Larry 0. Cox, page 3      (V-1527)


                 the National Guard Reserve, the Offi-
                 cersReserve     Corps of the United States,
                 nor to enlisted    men ~of then National
                 Guard, the Kational Guard Reserve, and
                 the ‘Organized Reserves of the United
                 States, nor to retired     officers   of the
                 United States Army9 Navy? and Marine
                 Corps, and retired ~warrant ,offlcers     ,and~.
                 retired  enlisted   man of ,thp ,united
                 States Army9 Navy,’ a,dd Marine Corp~~.~’.“.
                                                   7
            And Section 40 says:’
                        “No person shall hold or exercise,
                 at then same time, more ‘than one Civil
                 Office of emolument, except that of Jus-
                 tice of Peace, County Commissioner        No-
                 tary Public and Postmaster 0 . . a JGlus
                 the same mjlitary    personnel listed    in
                 Section 33/$ unless otherwise specially
                 provided herein.     Provided,.that    nothing
                 In this Constitution-shall      be construed
                 to prohibit    . 0 u             itary per-
                 sonnel listed    in Section 3      from hold-
                 ing in conjunctionwith      such office    any
                 other office .or posl,tion of, honor, trust
                 or profit 9 under ‘this State or the .,
                 United States,    or from voting at any
                 Election;   General, SpeciaJ-.or Primary
                 in this State when otherwise qualified.”
                        Thus Section 12 prohibits      a person from
            holding *any~o %fice of profit     or trust” ,knder the
            State of Texqs if thst person holds such an office
            under the United States,. another state oft the Ubiol$,
            or a foreign power; section 40 prohibits        the hold-
            ing of. mere, than one llcivil  office   of’ emolument”
            whether in the state or” federal government, certain
            civil   and military   offices or positions    of “honor
            trust or profit”     excepted; and Section, 33 ,prohl.bl&s
            payments of salary or compensation from the State
            Treasury to agents, officers     or employees of the
            State’who at t.he same time hold another “office         or
            position   of honor, trust or profit”     under the state
            or federal   government) certain military      personnel
            excepted y
                       In answer to your first rqu0stion, we call
            your attention  to two opinions of-the Texas Supreme
Hon. Larry 0. Cox, page 4       (V-1527)


Court which involved the     exceptions  in favor of cer-
tain military personnel.      $ktlsenter              135
              SJ&2d 562      (, _ _,
                  euDarQ,    140 TAX. 271, 167 SiWSci

           In the first   case, Carpenter, the Chairman
and Executive Director of the Texas Unemployment Com-
pensation Commission was commissioned and on active
duty in the Army of ?.he United States as a result of
being ordered to service as an officer     of the National
Guard. The Supreme Court held that he remained an OS-
ficer of the National Guard within the meaning ofhi:
exceptions  in Sections 33 and 40 and therefore
not vscated hls~~civil office;    that ds mllltary’ap-
pointment did not violate    Section 12 of Article   XVI
of the Constitution$    and that mandamuswould lie to
oompel payment of his salary as a state officer.
           The Cramer case concerned the existence        of..
an off&e   of temporary district    judge which existence
dspeti de.d on t h e status of the regdar       judge.  The
regular judge who had ~recelved a temporary oommlsrlon
and was on ackve duty In the Army of the United States,
was held by the Supreme Court to have been ~onunissloned
in the llOfficers  Reserve Corps” within the meaning of
Sections 33 and 40.    For this reason the Court held t&it
he was excepted from,the prohibitions       of those sections,
that he had not abandoned his civil      offioe   by accepting
the commission, and that mandamuswould lie on behalf
of his successor to compel payment of the successor”8
salary as temporary judge.     The Court expressly     pointed
out that the exceptions    to Seotlonsjj    and 40 are not
limited by but must control, Section 12:
            3qbny other construction      would render
     the amendments to Sections 33 and 40 mean-
     inglese,    and would mean that the4r adoption
     by the people was an idle gesture.           Then,
     too    if it be contended that the amendmenta
     to Sections 33 and 40 are in conflict          wlth
     Section 12 of Article        1.6, it must ba noted
     that such amended seations,         Nos.,33 and !+O,
     are the latest      expression    of the will of
     the people, and any provision@ of the Con-
     stitution    prevfously    exlrting   must, In case
     OS conflict,      ield to them. State v. Brown-
     son, 94 Tex. t 36, 61 S.W. 3.143 Gillespie         v’.
     Li htfoot     103 Tex. 359,.127 S.W. 799."
     (1%7 S,W.Jd at 152.)
Hon. Larry 0. Coxb page 5           (V-1527)


             Pour opinion  request and accompanying corre-
spondence describe     the enlisted men referred:to in your
first   question   as llpart-tlme    .emplopeeson   The Assistant
Auditor describes them as “part-time  attendants.”    We
conclude that the nature of their relationship    with the
State is that of employment rather than a relationship
in the nature of an 810ffice,a and, therefore,    that none
of. them hold “an office  of profitTor* trustl~ or~‘“a civil
office  of emolument” wlthln the prohibition8    of Sec-
t.ions 12 and 40 res eetively.      Att’y Gen. Ops: V-303
(1947.) d-5349 f19b3vo Cf. Lowe v. Statq, 83 Tex.                   .
Grim. i34, 201 S,W. 986 (19lm.
              However, each of these enlisted   men receives
from the State salary or conpensatlon       as an employee,
and this of,flce has construed the term “appolntee,8’ as
used in’section      33, to ba a synonym of the term employ-
      * Attly Gen. 0~:. O-2607 (1940)e Therefore     the pro-
Elktidn      of Section 33 mayyapply to these emiloyees
depending on thk gnswers to two.?remaining questions~’ Is
their *‘enlisted. status a ilposltkon of ?honor/: trust or
profit,,. under * 0 . the United States”?       If their hen-
listed    status is such a position,   are any of these men
within the exceptional      categories enumerated In Sec-
tion 33?
             There are no judiclel    authorities  tn point on
the first     question,  ‘The Carnenter and’cramer, cases both
 concerned commissioned officers.       But this office   ha8
.previously    held that Section 33 prohibited    payment of
 twelve days 1’“vacation pay” to an enlisted      man who was
 “drafted   for service in the United States Army” from
 State employment 0 Attly Gen.Cp..G-3335 (1941). After
 quoting Section 33, that opinion concludes:
            ~~ItFrom the above It Is clear,   without
        argument; that sunless a man falls    within
        o*~e,$f <the+exceptlens  provided In the seo-
        ond,!sentence,‘the  Comptroller  cannot issue
        him a warrant in consideratbon     of any emA
        ployment by ,the State subsequent to the
        time he is enlisted In the Army, whether
        as an officer  or, a private.”
           A fact determination  of whether any of the en-
listed  men who have been employed at the Big Spring
State Hospital fall within the exceptions     enumerated in
Section 33 cannot be made by this office    from the lnform-
ation furnished us.    In making this deteru$nation iOr*
.



    Hon. Larry 0. Cox, page 6           (V-1527)


    yourself,    you are advised that it is not a violation
    of the Constitution     to employ and compensate from the
    State Treasury enlisted     men of the National Guard,
    the National Guard Reserve, the Organized Reserves
    of the United States, ox enlisted       men who are retired
    from the United States Army, l?avy, or Marine Corps.
    And, under the holding of the Carnenter case, men who
    were. inducted into the service while in any of the
    above categories     are excepted within the meaning of
    Section 33, .regardless of the fact that they ,may be
    clas~sified at present in a category not enumerated in
    Se&iota 33 o You are also advised t~hat it is consti-
    tutfonalto     .employ and pay such enlisted, men even if
    they are not excepted from Section 33 provided they
    are paid from local funds rather than from funds in
    the State Treasuryi’ Letter Opinion dated May 19
    1947 to .Ron. Cibb Gilchrist.       As pointed out in hat
    opinion,   it is the vie     of this office   that Section.
    33 applies only to payments from funds in the State
    Treasury.
                   Your second, third       fourth and fifth      ques-
     tions Eoncern.the effect         of de&Ions 12, 33, and 40
     on the practice      of medicfne by independent c.ontrac-
     tars.      As a matter of lnterpretatlon,,this         office
     holds ~the view that one whose true relatton            is that
     of Independent contractor         does not occupy an “.office
     of profit     or trust” under Section 12 nor a l’divil
     office     of emolument” under Section 48, nor.does he
     occupy the status of “agent, offfcer            or appointee”
     or ,hold an “office       or position    of honor, trust or
     profit”     under Section 33.       Consequently,   these con-
     stitutional     restrictions     do not affect    services     that
     are rendered by independent contractors.              This view
     is adopted in Attorney Generalls Opinions V-303
     (1947) and V-345 (1947).          The reasoning and authori-
     ties in support of thfs conclusion           are set out with
     great care in those opinions,          especially   Opinion
     V-3O39 and they need not be repeated here.
             ..
                   You predicated     each of your original       ques-
     tions on the asrumption thet the doctors lnqnlred
     about are in fact acting as independent contractors
     in rendering the 14extra-carrlcular~~ service.              In
    .your supplemental request you asked the following:
                “In ~addftlen to the advice sought
          in.questions   two, three     four, and five,
          we desire ..the opln$on:a~ h ,your office  as
          to whether or not Dr. Roy C; .,Sloan is an
        Bon., Larry 0. Cox, ‘page 7     (V-1527)~

.

             lndenenda!it contractor with the Vrte+
             ads:Adminlstration;   whether or not Dr.
             C. W. .Atherton is an independent ton-
             pae+,or with the Big Spring estate Bos-
             pital;. and whether or hot Dr. Se C.
             Banker is an independenta&&Taotar.
            ‘with the Veterans Admlniatratien a&/or
             the Big Spring State Hospital,a
                   The existence of the rtetua of independent
        contractor depends upon the actual relationship  ba-
        tween~the. contractor Lanathose with whomhe contracts.
        As pointed out In Opir$on V-303, the Supreme Court in


    .
                     “The, general ‘rule relating to lnde-
              penaent. 4ontractors rests upon certain
              recogniwa tests; although such testm are
              not necessarily     concurrent. with each
              other, nor 18 each test in Stael.? aax-
              trolla3g.     Such tests are:     (1) The ‘UJP’
            Y,dependent nature ~of his buainase; (2)
             this obligation to furnish naceseary .tools,
                  plies    and material to perform the ob;             :
              13 his Glght. to control; the. tiograrl 0 3 :
              the work, exuept aa to final resul*r; (4).'
              the Mine for which hs.is employcld;'and
              (5) the method of pqment, whether bp tfme
              or by the Job*”
                   : Iou’have furnished us the foll~lng         informa-.
        tlon about the actual relationship       between the several
        doctors and the inetitutlons       they s8rve:
                                    ‘.
                               Dr.. Sloan’ I stat& .withthe
             ,Veter%; %lnistratior.$       Hospital~is’that
             “of consultant in neurology.. ana psycb%atry.
              He Is not a tnemberof the staff and dew
              not .take actual charge .of any patieiUk8 but
              acts 8trictlT in an advisory capacity, da-
              l$beratlng ulth and oounseLl.ing the patlemtr
              oi.staf?~physialans      at their reques&     llo
              furnIsha* his own tools, consisting of a
              stethoroope an&hammer, and .no supplies are . . .             .
              med.     Hfs consultations    are held omlr qt
              nights and on holidays when he is offiioi&~
              off duty at the B$g, Spring State Ho8pifal
    ,   .


            Eon. Larry 0. ~Cox, page 8    (V-1527)


                .and only, at ,stih times as he may be
                 cal&ea. H.ereceives a fee of $50.00 per
                 consultation,. regardless of’ the tine ex-
                 pended, and he Is ~paid from Vet.eranr, Ad-
                 ministration Fea.Basis and contractual
I


                 servf~e Ipnnas.
                       II          Dr. Athertonl,s status at
                 the Big”S&g        State Hospital is that of
                 consultant in clfnical.ana       gross pathol-
                 .WY*    Ha ifs snot a  member of  the hospital
                 staff    and he personally. furnishes what-
                 ever. ? 001s ar,e required fn connection
                 with his work at the hospital, which con-
                 sists <of, advising, deliberating,     and
                 counsalling with staff physicians In con-
                 nection vlth post-mortem examinations.
                 He accepts consultation      only at nights
                 and ,011holiaaya when he, .is officially     ofi
                 dnty:from.the Veterans’ Administration
                 HospitaL       His coqpensatlon consists -of
                 #EL50 per consultation which is paid by
                 purchas?. voucher from the Rig Sprizq State
                 Hosplt.alo           .
                        “Dr. J. C., Banker is a radiologist   at.
                 the Xalone-Began Clinicin      B&g Spring and
                 is a member’of the staff.      HIS ,tools and
                 supplies used there’ are furnIshed him by
                 the clinic.    He is responsible for the corn-
                 pletc care and treatment of those patients
                 assigned to him at the c1fnl.c~ He fs .em-
                 playaa by the clinic eon a full-tfme~ .besis,
                 but &a,financial     arrangements with the
                 clinic arej of ,,course unknown to this of-
                 ffcep    D~..Banker’s 84.atus with the Vater-
                 ans’,&3mipistxat~ion Hospital 1s of consult-
                 ant ‘in radiology.    He is not a member of.
                 the hospital staff and does not take,actual
                 charge of any patients but cacts only fn an
                 advisory capacity.     190tools or suppli6s
                 are involved since his work consists of
                 reading X-ray films and consulting tiith the
                 staff physicians with regard tb Roentgeno-
                 logical technique6 He accepts intermittent
                 calls for consnltation and receives a fee
                 of $50&O per conanltation,      regardless of.
                 the time expendail, which fee is paid from
                 Voterans .Adtainietrat%on Fee Basis and
Don. Larry 0. Cox, page 9                     (V-1527)


         Contractual      Service       Funds. Dr. Bankers’s
         status at the Big          Spi‘lng  State Hospital
         is that Of consultant    in i+adloxogy.. EIe
         is not a member of the hospital staff and
         does not take a,ctual~ char 6 .of patient,s.  ”
         Iiis’duties consist   of rea 2ing X-ray films
         with the staff physicians     and consulting
         with .them wi.th regard to Floentgenological
         techniques.,      Do ,toole or supplies are
          tlsea. - He is avallable. for conF;,“;t”,;
          ohlp when called and receiv
          $37..50  per- ctisultatio&,,      2 rdless of, the
                                        .reg~
          time. expended, which, fee is -paid by pur-
          chase voucher from the Big Spring ‘State
          Hospital.‘~
            Based.,on an applicatiofi of the ab&e facts
to the tests approved in the .tTyUs&case,       aiagps~t
is the opinion of this office t at Dr. Roy C,
is an Independent contractor with the Veterans .Adqvln-
istration,,  that Dr. C. w.. .Atherton 20 an iudepeudeiae
contractor. with the Big Spring State Hospital, and
that Dr. .J.. c. Banker is au independent contractor
with both~ the V.eterans Administration and the Big Spriug
State Ho~spltal. Your. seooua question. becomes hypathet-
ical in view of the statement above which .ihdiaates
that D%. Sloan does. in ,fact receive ;eompensatfon from
the Veterans ~Adminietrat.ior*r
               In re+affirmiug           the.vfeQ
                                       adopted ho. OplEdon
V-303 aud,in holding that doctors     ar% renderlugthe     de-
scribed consulting services as independent contractors,
we feel. compelled to’ point out that a number of earli.er
opinions of this office    holding unconstitutional    cer-
taip dual medlcal~ services   did riot consider the poasi-
billt~ that service might be rendered by an independent


           ’   we refer     to   opinions O-2607 (1940)  O-306i
-($hl)     ~O-3788,(1941)           O-5349 (3943) and O&525 .(L943jv
None .o#, there opinions  need be overr&led beoause eaah
appears to.be e oorreot holdiug.on the facts’.submitted.
It 1s apparent, ‘however, ‘that most .of, .fhe duel cervices
held unconstltuti@nal    in these opinions could with but.
alight oha e in the facts, be~heWpei.iniseibie       uhdef
Qpia*     v-$tL

                                    .
.   .
        .


            Hon. Larry 0. cox,    page lo   (v-1527)


                        Your sixth.: question,      concerning -the ex-
             servicemen employed, atMexla State School and Home,
            .raises one Issue:’ Does a trainee         attending a Veter-
             ans Administration     night ‘school     who is drawing com-
’            pensation for such training,        hoid an “office   of
             profit’ or trust,” a %ivil       office   of emolument v ‘or
            ,811“office   or position    of, honor, trust or profit
             under . m 0. the United States” within the mean&
             of Se~ctions’J2; 40, .ana33$ .respectively?
                      ‘We. think it Is obvious’ that‘ these veter-
            ans are not officers    of the’lJniteh States within the
            meaning of Sections 12; ‘33, mid 40. Hence the only
            issue raised relates    to Section 33: Does a veteran
            pursuing sdch.tralning    hold a “position    of honor,
            trust or profit”    under the. United States:
                          The training or schooling of veterans of
             Worl’a War II eat the expense of the United States Is
              a’uthorizrd. tn Veterans Regulations     promulgat.ed pur-
             suant to Chapter 12 Title 38 of the united States
            ‘Code., Title ‘38.   codifies  the federal Legislation
            :.deallng with ?Pensions      Bonuses,. and Veterans’ Be-
              llef.”    You ‘aidnbt in&ate      in your opinion request
             whether the veterans, inquired about, were being tcalned
              under Part VII (Vocational, Rehabil$tation)       ~br Part
             VIII (Edhcatlon of Veterans’) of Veterans Regulation
            ,Boo ,1(a)    promulgated x.u@ef-3tj .%J.S.C,A. 9 Chapter 12.~
             But Sn either event the, payments rec.efved during
              training are jlsabslstence    al&wanctP gradted to the
              trainee- awing his:, satisfactory    ,continuat&on of train-
              %ng’aCoordlng ts specifled:domaitidns~         #one of those
              conditions   require work ‘or srrvlc@ .by ‘the trainee for
              or on behalf of the government.. The allowance i’s def-
              initely, not a wage or salary.      All .of the benefits
              provided in Title 38 are In the nature of gratuities
             made available     by Congress to persons who have ren-




            ment and benefltod   veterans    by. iirtue   of any of.~the
            provisions, of Title 38.
                       Therefore,   its 1s:the ,oplnion of ~this ‘office
            that a veteran pursufng a coarse ofstudy       or training
            at .the expense of the United States,. during which he
            receives  a subsistenc’e allowance,’ is not holding a
.   ‘.




                Hon. Larry 0. Cqx, page 11 (V-1527)


                “position of honor; .trust or profit   under l v .            the
                United States” within the meafilng o 3 Section 33.
                             In answer to your seventh question,    you are
                advised that by virtue of Sections 33 and 4-O it is
                constitutional      for the State to emplqy persons in the
                categories     inquired about by you, who are presently
                in the, National. $arcl,. the National Guard, Reserve, or
                ii;, v9ganized Reserves of the United. States.      CarD,asq-
                       .    aDDa& m;         Cramer v. Shewoarq,. #uor8*




                  .’          .It, is not ti violation  6f. Artic’k”XVI,
                        Sections 12 and 40; Conskit~tion        of. T’exas,
                        to pay from the State Treasury employees
                        at the Big Spring State Hospital who are
                        also drawing pay as enlisted       men in the
                        armed services     of the United States.       How-
                        ever, such employees are prohibited         by
                        Section 33 of this Article      from being paid
                        from the State Treasury for this employ-
                        metit, unless they,were~members of the Na-
         ._,.
                        tional Guard, thee Mational .Guard .Reservb;
                        or the Organi.zed Reserves of the united
                        States when~they were inducted into the
                       ,service    or .udess they are members of such
                        units. at the present’ .timr or unless they
                        are re,tired froni the mll.l,tery serd.f+e of
                        the United States.
                              The Texas .C~onsti$ution iinpases no pro-
                       hibit,ions  aga.inst engaging or paying.‘for
                       services   rdndered to the State by physi-
                       dens as independent contractors.
                       .    I It is no violation    of .the’ Texas,Con-.
                       s’tltution  for the Mexia States Sohool titid
                       Home to retain on its payroll       employees who
                       are ax-servicemen    of world War II attend-
                       ing Veterans Administration       school and who
                       draw subsistence    allowance during such
                       training.    Likewise,    it is constitutional
                       to employ at a State institution         and to
                       compensate from the State, Treasury pirrsons
                    ,.,-who are presently   in the Natiqnal. Gukrd,
                                                              ,
                                                                       -   7
                                                                               ._.

_,   .




         Hon. Larry Oo.Cox,     page 12    (V-1527)


              the National~Guard Reserve, or the Organ-
              ized Reserves of the United States.
                                          ,, ,yoprs very trw,
                                              PiiCB~DARIEL
         AmovED:                            Attorney General

         E; Jacobson
         Revi~ewing Assistant    ‘.
         Charles D. Mathews
         First Assistant                              Assistant

         PR:wb




                                                           .




                                                                  7.

                                                                                     ,.
