           THEATTORNEY                  GENERAL
                       OP TEXAS




                       July   23, 1959        i

Honorable Robert S. Calvert
Comntroller of Public Accounts
Capi.tol Stati.on
Austin 11, Texas
                                 Opinion No. ~~-671

                                 Re:   Questions relating to
                                       issuance of salary war-
                                       rants to the President
                                       of Texas Southern Uni-
Dear Mr. Calvert:                      vers:ty.

       We have your letter of July 7, 1959, in which
you ask the followl.ng question:

             "I ~311 thank you to advise me
       whether the funds paid by salary
       warrants issued to Dr. S. M. Nabrit,
       President of Texas Southern Universi-
       ty, during his tenure on the Nat-lonal
       Science Board result in his being in-
       debted to the State of Texas and
       whether that amount must be repaid to
       the State before future warrants may
       be issued to him."

       In Attorney General's OLinion No. W-639   (1959)
we advised you that Section 33 of Article XVI of the
Constitution of Texas prohibited warrants for payment
of salary from being rssued to Dr. Nabrit 'so long as
he remains on the National Science Board". We have
been advised that no such warrants have been Issued to
Dr. Nabrit after you received notice of hits service on
that Board.

       It has been consistently held that Section 33 of
Article XVI of the Constitution of Texas forbids the
Comptroller from drawing or paying a warrant upon the
Treasury in favor of a person holding another position
of honor, trust or profit. That section is prohibitory
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Honorable Robert S. Calvert, page 2   (~~-671)


only in its appll.cation against the accounting officer
of the State and 'doer not deal with the right to reim-
bursement of the official concerned.   (Attorney General's
Cpi~n1on O-5157 (1943))

        If the Comptroller draws a warrant to a person
holding such a dual positjon after the Comptroller i.s
notifi~ed of or is charged with constructive knowledge
of the facts, he has violated Section 33. Were a
person paid by State warrants on two separate payrolls,
the Comptroller probably would be charged with construc-
tive knowledge of such fact, and warrants Issued under
those circumstances would be issued in violation of
SectIon 33 of Article XVI. However, in the instant case,
the Comptroller had neither actual nor constructive knowl-
edge that Dr. Nabri.t held a positi~on of honor, trust or
profi~t under the Federal Government until the latter part
of May, 1959. Notice is usually defined,,as "information
concerning a fact actually communicated.     (31 Tex.Jur. 385,
Notice, Sec. 2.) Without knowledge, the Comptroller could
not be legally liable for making the paTyments to Dr. Nabrit.

       We are advised that Dr. Nabrit resigned his position
on the National Science Board on June 11, 1959. He no longer
holds the two positions of honor, trust or profit, and is
entitled to receive the warrants for his salary from that
date, unless some other prohibition exists.

       Article 4350, Vernon's Civil Statutes, reads in full
as follows:

             'No warrant shall be issued to any
       person indebted to the State, or to his
       agent,,or assignee, until such debt is
       paid.

       If the circumstances under which Dr. Nabrit has re-
ceived his State salary warrants during his service on the
National Science Board result in his being "indebted" to
the State, the Comptroller would be prohibited from issuing
any further warrants to him until such indebtedness is re-
paid. If Dr. Nabrit is not "indebted" to the State, we see
no prohibition against resuming his salary payments.

       We are not here concerned with the line of cases in-
volved in State v. Steck Co., 236 S.W.2d 866 (error ref.).
Dr. Nubrit was paid his salarv pursuant to the apoointment
and actual service rendered the-state as President of Texas
Honorable Robert S.   CalVert,   page   3   (ww-671)




Southern Universi,ty. The warrants were issued and pa,id
pursllant to a valid appropriation supported by pre-exist-
ing law.

        There is Mnguage JonAttorney General's Opinion
No. O-5123 (1943) to the effect that if an employee re-
cej~ves state warrants whl.le holding a position of honor,
trust or profi.t under the Federal Government, he is "in-
debted" to the State for that amount. That language is
unsupported by cited authority.

       In the case of Wichita County v. Robinson, 155
Tex. 1, 276 S.W.2d 509 (1955), we find a somewhat analo-
gous principle. Robinson, as County Tax Assessor, had
received fees under a statute the Supreme Court  later de-
clared to be unconstitutional.   He had performed services
for whl.ch the fees were paid him. In the orl.ginal opinion,
the Supreme Court held that all money so received must be
repaid to the County. Hcwever, on rehearing the Court
considered whether public servants receiving funds in com-
tlete goo; faith under,,such circumstances should be
 punished or whether their rights are to be protected."

       The Supreme Court said:
            I,. . . The services have been performed
       by the Tax Collector. A part of the compen-
       sation allowed by the statute  was paid to him
       by the Commissioners Court. All parties acted
       in good faith and we think it would be in-
       equitable under the circumstances here to re-
       quire the respondent to repay the compensation
       so paid to him.

            "We therefore hold that the County         is not
       entitled to recover from the respondent         the
       compensation which had been paid him in         reliance
       upon the validity of the law and on the         advice
       of the Attorney General."

       To employ the language of the Supreme Court of
Texas in the Wichita County case, supra, we believe that
"it would be inequitable under the circumstances here to
require (Dr. Nabrit) to repay the compensation so paid
to him." The complete good faith of Dr. Nabrit cannot
be questioned.  There was no direct holding, insofar as
we can ascertain, by either this office or by the courts,
prior to the issuance of Attorney General's Opinion W-639
                                                               .




HonorabltT Robert S. Culvert, page 4 (~~-671)



(l?lj?), that Dr,. Nabrit's State salary warrant could not
be drawn on the Treasury while he served as a member of
the Nztional Science Board. He served as College Presi-
dent, did the work, performed the duties, and the State
received the benefit of his work for which he has been
paid. Under these circumstances, Dr. Nabrit is not "In-
debted" to the State.

       In our opinion, the Supreme Court has settled the
question contrary to the language in Attorney General's
OPinicn O-5123 (1343) and the same is overruled to the
extent of such conflict.

       Under the attending circumstances, we do not be-
lieve Dr. Nabrit Ins liable to repay the sums involved to
the State; hence, we do not believe he is Indebted to the
State within the meaning of Article &350. Therefore, the
Comptroller is not prohibited from issuing salary warrants
to Dr. Nabrit for his service as President of Texas Southern
University up to the date the Comptroller gained actual
knowledge of his service on the National Science Board and
from issuing salary warrants for his service subsequent to
June 11, 1959.

       Both of your questions are answered in the negative.

                           SUMMARY

            Under the facts presented, the Presi-
            dent of Texas Southern University is
            not "indebted" to the State under
            Article 4350, Vernon's Civil Statutes;
            hence, he is not obliged to repay the
            amount of salary warrants he has re-
            ceived before future warrants may be
            issued to him. Opinion O-5123 (1943)
            has been overruled to the extent of
            conflict.

                            Yours    very truly,

                            WILL WILSON
                            Attornev General of Texas



                               Tom I. McFarling
                               Assistant
TIM:zt:rm
.   .




        APPROVED:

        OPINION COMMITTEE
        Geo. n. Alaclthurn, Cliai.rman

        Grundy William::
        Elmer McVe>
        Joe Allen Osborn
        Faul W. Floyd, Jr.

        REVIEWED FOR THE ATTORlESEYGENERAL
        BY: W. V. Geppert
