                 April 22, 1953

Bon. Robert s . Calvert        Opinion IW. S-32
Comptroller of Public Accounts
Capitol station                Rer Applicability of the
Austin, Texas                       -noa-communistoath
                                    required by H.B. 21,
                                    53x4 Legi+?Ja~e, to
                                    services by doctors,
                                    1avyers, e~agineers,
                                    architects, skilled
                                    services, labor,
                                    statutory vitness
                                    fees in criminal
                                    cases, payment of ex-
                                    pert vltnesses, pay-
                                    ment for assistance
                                    in lav enforcement,
                                    coo~rative projects
                                    administered by other
                                    agencies, constitu-
                                    tional salaries of
                                    State Officers and
                                    per diem of members
Dear Sir:                           of the Legislature.
          We have your request for an opinion on the ap-
plicability of the follovlng provision of Bouse Bill Hum-
her 21, Acts of the 53rd Legislature, 1953:
          "plofunds of the State of Texas shall
     be paid to any person as salary or as other
     compenaatlon for personal services unless
     and until such person has filed vith the
     payroll clerk, or other person by vhom such
     salary or coxpensatioE Is certified for pay-
     ment, an oath or afflmation'stating: . . ."

          You asked specifically:
           "1. professional ,services,such was
     doctors, lavyers, engineers, architects,
     etc.?
                                                           I.




Hon. Robert S. Calvert, page 2 (S-32)


          "2. Skilled services to build, to
     repair, or to service contracts which are
     for labor only?

          "3. Statutory servfce8, witness fees
     in criminal cases, expert vitnesses, pay-
     ment of services for law enforcement, under-
     covers-work,etc.?
           "4. Cooperative projects; varrants
     drawn to reimburse Federal and State agen-
     ties, or Its subdivisions or compact com-
     mlssions for salaries or personal services?

          "5. Constitution of sal,ariessuch as
     executive officers of the State government
     and per diem from members of the State Legis-
     lature?R
           The oath required by H. B. 21 Is In part as
follows:
          "1. That the affiant is not, and has
     never been, a member of the,_CommunistParty.
     . . ; and
          "2. That the afflant is not, and dur-
     ing the preceding five year period, has not
     been, a membee of any organization, assocla-
     tion, movement, group or combination which
     the Attorney General of the United States,
     acting pursuant to Executive Order No. 9835,
     March 21, 1947, 12 Federal Register 1935,
     has designated as totalitarian, fascist,
     communist or subversive, . . . and
         "3. That the affiant is not, and, dur-
    ing the preceding five year period, has not
    been, a member of any 'Communist Political
    Organixation' or 'Communist Front Organlxa-
    tion' registered under the Federal Internal
    Securlt Act of 1950 (50 U.S.C.A., sec. 781,
    etseq..3   ...n
          In answer to your first and second questions,
it is our opinion that the above provisions do apply
to salary and compensation paid to doctors, lawyers, en-
gineers and arhhitects, and to skilled craftsmen and
laborers, If their services are rendered in the capacity
    Hon. Robert S. Calvert, page 3 (S-32)


    of employees; and zot as fndependent-cuntraators.
,              There Is no exclusfve rule~,by,vhlch lnde-
     pendent contractors and employees~may be dlfferentl-
     ated. Qenerallg; .hoveveer;the relations are ~dls-
     tinguiahe&by-the qxtent'of.'thecontrol which the       .
    +st~lossr~ex.ercises~~over
                             the,emolosee in the manner
     in-vhich he performs his vork.- C&uth   v. Valley
     Ready-nix Concrete Co., 221 i3.W.a 564 (Tex. Civ.
     App. 1949, error ref.r
              "An independent contractor is any
         person vho, in the pursuit of an lnde-
         pendent business, undertakes to do a
         specific piece of vork for other persons,
         using his own mfans and methods, without
         submittlna himself to their control In
         respect to all Its details." Shannon v.
         Western Indemnity, 257 S.W. 522,324 (Comm.
         App. 1924).
              But each case mnst be based on its ovn facts.
              In ansver to your third question, It is our
    opinion that the above provlslon~ do not apply to
    statutory witness fees in crlmainalcases, nor to com-
    pensation paid by the State to expert vitnesses since
    these fees are clearly not for personal services, but
    are to reimburse the vltnesses for their expenses.
              It IS our opinion that the above provisions
    do apply to payment for special and undercover services
    in lav enforcement If the services are performed in the
    capacity of an employee.
              Your fourth question 1s too broad and general
    to be answered specifically. However, we vi11 be glad
    to ansver opinion requests based on any Individual agency
    or fact situation.
              In ansver to your fifth question, it is our
    opinion that the above provisions do not apply to con-
    stitutionally fixed salarles of State Officers, nor to
    the constitutionally fixed per diem of members of the
    State Legislature, since such constitutional provisions
    are self executing and exclusive.
              We are In no vay passing upon the constitutlon-
    ality of the above Act.
                                                  -. ..


Hon. Robert S. Calvert, page 4 (S-32)




         Then "nOn-B@T?erd3W" oath,required
    b,yH.B; 21, Acts,of,the 53ra L+gislature,
    1953, appliesto State ,funds paid for
    services by~doctors; lawyers, engineers,
    architects, skilledzcraftsmen and laborers,
    and for.speclal and undercover Service0  in
    law enforcement; if such~servlces are ren-
    dered ia the capacity of an employee and
    not asan lndependent~contrsctor.
         The 'non-subversive" oath doe6 not
    apply to statutory vitaes8 fees In crlm-
    lnal cases, nor to compensation paid by
    the State to expert witnesse~s,uor to the
    constitutionally fixed salaries of State
    Officers, nor the constitutionally fixed
    pxr3Wxro~~~St*    Mgtslators.
                             Yours very truly,
                             JOHN BEN SREPPERD
APPROVBD:                    Attorney General
