                          QBfficeof tfy Plttocnep @i%weral
                                  &ate of IEexas
DAN MORALES                            October    11,   1991
 ATTORNEY
      GENERAL
    The Honorable Thomas R. Phillips             Opinion No. DM-49

    Judicial Districts Board                     Re: Whether a justice of the Supreme
    P. 0. Box 12248, Capitol Station             Court of Texas would violate any provi-
    Austin, Texas 78711                          sion of the Texas Constitution or a state
                                                 statute by serving as a member of the
                                                 Board of Directors of the State Justice
                                                 Institute (RQ-109)

    Dear Chief Justice Phillips:

           In your capacity as chairman of the Judicial Disticts Board,1 you have asked
    whether a justice of the Supreme Court of Texas would violate the Texas
    Chstitutio~ article XVI, section 15 section 33, or section 40, or any other
    constitutional provision or statute by serving as a member of the Board of Directors
    (the “board”) of the,State Justice Institute (the “institute”). Your query requirk us
    to examine both the federal statutory scheme establishing the institute and its board,
    and the state constitutional prohibitions against dual office holding.




            Fe institute is a private, nonprofit corporation created by and organized
    pursuant to federal law. See 42 U.S.C. 9 10701 ef seq. The purpose of the institute is
    to further the development of improved judicial administration in state courts. Id
    9 10702(a). Its duties include directing a nati&al program to provide funds to state
    courts and national organizations that support or are supportkd by state courts,
    fostering‘coordination between the state and federal judiciaries and encouraging
    education for state judges and state judicial personnel. Id 9 10702(b). The
    institute’s organic statute authorizes extensive federal appropriations to fund the
    institute and its programs. Id 3 10713. While the organic statute provides that
    “[e)xcept as tithe&se specifically provided in this chapter, the institute shall not be
    considered a department, agency, or instrumentality of the Federal Government,” id


           ‘SeeTCLConst.art. V, 0 7a



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The Honorable Thomas R. Phillips - Page 2             (DM-49)




Q 10704(c)(l), it also provides that the institute is subject to the federal Freedom of
Iuformation Actr and has rulemaking authority, id 00 10702(f), 10704(e). The
board’s responsibilities with respect to the institute include establishing policies,
funding priorities, and rules and regulations; developing programs; appointing and
fixing the duties of the executive director; and presenting recommendations
regarding state judiciaries to pertinent entities of the federal government. Id.
9 10703(k)(l) - (4). The board is also expressly required to award grants and enter
into cooperative agreements and contracts on behalf of the institute. Id
90 10703(k)(6), 10705(a).

       The board consists of six judges, one state court administrator, and four
members of the public. Id 3 10703(a)(2). Board members are appointed by the
President, by and with the advice and consent of the Senate. Id 9 10703(a)(l). The
President is required to select the judge and administrator members from a list of
candidates submitted by the Conference of Chief Justices. Id 9 10703(a)(3). Board
members generally serve for three-year terms and may be reappointed for
subsequent terms. Id 9 10703(b), (c). Each board member has one vote. Id
8 10703(f). The board members are required to hold regular meetings on a
quarterly basis. Id Q 10703(i). Board members serve without compensation but are
reimbursed for their expenses. Id 5 10703(d). The organic statute also contains the
following provision: ‘The members of the Board shah not, by reason of such
membership, be considered officers or employees of the United States.” Id
0 10703(e).               :

        To determine whether Texas law precludes a justice of the Supreme Court of
Texas from serving as a member of the board of the institute, we turn to the Texas
Constitutior~, article XVJ, sections 12, 33, and 40, the constitutional provisions
pertaining to dual office holding.




       Article XVI, section 40, provides in pertinent part that “[n]o person shall
hold or exercise at the same time, more than one civil office of emolument.” Section
33 provides:

              The accounting officers in this State shall neither draw nor


       25U.S.C.D552



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            pay a warrant or check on funds of the State of Texas, whether
            in the treasury or otherwise, to any person for salary or
            compensation who holds at the same time more than one civil
            office of emolument, in violation of Section 40.

An elective judgeship, a paid position, is a “civil office of emolument” under sections
33 and 40. See Attorney. General Opinions JM-594 (1986); JM-333 (1985); M-l 194
(1972); M-409 (1969). By contrast, a member of the board of the institute does not
receive a salary and is entitled only to reasonable expenses,s and therefore does not
hold a “civil office of emolument.” See Attorney General Opinions M-1194; M-842
(1971). Thus, neither section 40 nor section 33 would prohibit a justice of the
Supreme Court of Texas from serving as a member of the board of the institute.4
Section 40 also explicitly exeflph various state and federal offices (including justices
of the peace, county commissioners, notary publics, postmasters, officers of the
National Guard, National Guard Reserve and Officers Reserve Corps, and retired
officers and enlisted soldiers of the various United States military forces) from the
dual office holding prohibitions of sections 12 and 33-5 Section 44 however, does
not provide an exemption for either justices of the Supreme Court of Texas or
members of the board of the institute,




        %    42 U&C. 0 10703(d).

         ‘In November 1972, the voters amended section 33. See SJ.R. 29, Acts 1971,62d Leg., at
4l33 (proposing constitutional amendment). Prior to that amcmimeot, s&ion 33 prohibited the
campcnsation of * state officer Y&o holds at the same time any other OJ@Cor@tion of honor, bwr
orp@, under this State or the United States.” (Emphasis ad&d.) While section 40 precluded a state
o&x only from holding two ‘civil O&J of emolument,’ i.e. compensated of&s, section 33 precluded
a state officer from holding any office, includiog ao uocompcnsated office. See Attorney General
Opinions M-11% M-g42 Thus, under the prior version of section 33, elected, shied judges who
accepted unwmponsalcd positions were. not entitled to receive any state compensation for their judicial
positions. Se: Attorney General Option M-1194.

         %ction 40 also provides that a nonelcctivc. state offxer may hold other nonchtive oftices
m&r the state or the United States, “ifthe other offkc. is of benefit to the State of Texas or is required
hy the State or Federal law, and there is no contlict with the original oftkc for which he receives salary
or cornpcnsation.’ See V.T.C.S. art. 6252-98 (statutory provisions gowr&g the-dual office.holding of
oonelcctk state officers, invalidated in part by 1972 amendment to Texas Constitution article XVI,
sections 33 and 40); see u&o Attorney General Opinion H-5 (1973).




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The Honorable Thomas R. Phillips - Page 4              (DM-49)




       Article XVI, section 12, provides:

               No member of Congress, nor person holding or exercising
          any office of profit or trust, under the United States, or either of
          them, or under any foreign power, shrill be eligible as a member
          of the Legislature, or hold or exercise any office of profit or trust
          under this State.

Section 12, except as provided by article XVI, section 40, generally precludes any
person who holds an office of profit or trust under the State of Texas from holding
an office of profit or trust under the United States. As noted above, the provisions
of ,article XVI, section 40, exempting some state and federal positions from the
general prohibition against dual office holding are inapplicable here.

       The scope of section 12 is quite extensive. The interpretive commentary to
this constitutional provision notes that while the common-law doctrine of
incompatiiili$ of public offkes did not inhibit dual office holding where the
positions were not incompatible, “the provision in the Texas constitution establishes
an absoluteprohibirionagainst double office holding, and hence it is immaterial
whether the offices would be considered incompatible at common law.” (Emphasis
added.) The consequences of holding two offices are considerable. A state officer
who accepts an office of profit or trust under the United States automatically
abandons his state office and is no longer entitled to compensation for state office.
See Centeno v. Inselmann,519 S.W.2d 889,890 (Tex. Civ. App.-San Antonio 1975,
no writ); Lowe v. State, 201 S.W. 986,987 (Tex. &im. App. 1918); Attorney General
Opinion M-409.

        A justice of the Supreme Court of T&as clearly,holds an “office of profit or
trust under the State of Texas-” See Lowe v. Skate,sups. Thus, a justice is precluded
from serving as a member of the board of the institute if that position is an office of
profit or trust under the United States. Pursuant to title 42, section 10703(d), of the,
United States Code, members of tbe board are reimbursed for their expensks but
selve without compensation. Thus, the position is not an office of “profit.” See
Attorney General Opinion MW-360 (1981) (person who is entitled to reimburse-
ment for travel expenses but whose position is uncompensated pursuant to federal
regulations does not hold office of profit under article XVI, section 12). Therefore,
the critical issue is whether the position is an office of trust under the United States.
Id




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The Honorable Thomas R. Phillips - Page 5                      (DM-49)




        Under Texas law, the determination whether a position is an office of trust
under the United States for purposes of article XVI, section 12, involves a number
of considerations. First, we consider the legal basis of a position and its duties,
including its mode of appointments and statutory genesis, to determine whether it is
“under the United States.” See Attorney General Opinion MW-360 at 2; cj KVlti v.
Potts, 377 S.W.2d 622 (Tex. 1964) (holding that a councilman of a home rule city
held an “office under this State” for purposes of article III, section 19, of the Texas
Constitution because the position was created by the state constitution and
performed duties imposed by the state). Second, we also consider whether a person
holds “an office,” or is merely a ministerial federal employee or serves in an
essentially advisory position. The key to this determination is whether the person is
to be delegated “some of the sovereign functions of the United States Government.”
Attorney General Opinion MW-360 at 2 (quoting Attorney General Opinion C-527
(1965)). “An office” is a position that

           .possess[es] a delegation of a portion of the sovereign power of
            government - authority to exercise some portion of the sover-
            eign power -independent       of any superior human authority
            other than a statutorily prescribed general control.

Letter Advisory No. 85 (1974) at 4 (quoting LaFherv. Commonwealth,418 S.W.2d
416, 417 (KY. 1967)); see UI!SO  Greeti v. Stauart, 516 S.W.2d 133, 135 (Tex. 1974);
AMne Indep SchoolD& v. Smndlq~,280 S.W.2d 578,583 (Tw 1955). Finally, this
office has also considered, to a lesser extent, the stability and duration of a position,
requiring that to constitute “an office,” a position must have some modicum of
permanency and continuity, such as is provided by an appointment for a fixed term.
Attorney General Opinions JM-847 (1988) at 5; O-4313 (1942). See gene&y
Attorney General Opinion M-409 (setting forth constitutional criteria for “office”).

       Ap&ing thk foregoing principles, we conclude that membership on the
board is an office of trust under the United States. Fit, and niost important, the
position is created by federal law and a board member ls appointed by the President
with the advice and consent of the Senate. In addition, thi board’s duties are

         awhilethe modeof appointmentis relevant to whether a position is one “under the United
States,’see, es, Attorney General Opinion MW-360 at 2, this oft& has expressly eschewed reliance on
modeof appointmentas the solefactorin determiningwhethera personholds“aa officeof proftior
trust,’ or is merely an employee or serves solely in an advisory position. See Letter Advicory No. 85
(1974).



                                            p.   247
The Honorable Thomas R. Phillips - Page 6                      -'   (DM-49)




imposed by federal law. Thus, we conclude that board membership is a position
“under the United States” for purposes of the Texas Constitution. See Attorney
General Gpinion h4W-360 at 2 (concluding that position created by federal law and
appointed by the President was a position “under the United States”). Second, a
board member is not merely a ministerial employee of the federal government nor
does a board member serve solely in an advisory capacity. Indeed, the board
members are expressly charged with the duty to establish policy and funding
priorities for the institute, to issue rules and regulations for the institute, and to
distribute federal funds in the form of grants and cooperative agreements or
contracts. See 42 U.S.C. 5 10703(k).’ Thus, we conclude that the federal organic
statute delegates to a member of the board some of the sovereign functions of the
United States Government independent of any superior authority. Finally, a board
member generally serves for fixed three-year terms and is required to attend
meetings on at least a quarterly basis. Thus, we conclude that the position involves
continuous service for a substantial period of time such that it clearly constitutes “an
office.”

        In sum, membership on the board of the institute is an office of trust under
the United States for purposes of the dual office holding prohibition of article XVI,
section 12, of the Texas Constitution. The exemptions to the general prohibitions’
against dual office holding set forth in article XVI, section 40, do not apply to the
office of justice of the Supreme Court of Texas or the office of member of the board
of the institute. Therefore, a justice of the .Supreme Court of Texas would be
precluded from accepting an appointment as a member of the board under the
Texas Constitutior~




        ,As noted above, the institute’s organic statute provides that members of the
board are not to be considered officers or employees of the United States. See 42
U.K. 0 10703(e). In light of our conclusion that a-member of the board holds “an
office of profit or trust under the United States” for purposes of article XVI, section
12, of the Texas Constitution, we must consider whether the supremacy clause of the


       ‘The legislative history of the statute indicates that prior to the creation of the. institute, federal
fundingfor projectsinvolvingstate courts was admiied               by the United States Department of
hstia. See S. Rep. No. 480,9&h &IS., 2d SCSS.3, npdtwd in 19S4 U.S. CODE CONO.& ADMIN.
News 572S.931.




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The Honorable Thomas R. Phillips i. Page”7                 (DM-49)




United States Constitutions requires the federal organic statute’s characterization of
the position to prevail over that compelled by Texas law.9 We conclude that it does
not.

        The United States Supreme Court has held that state law is pre-empted
under the supremacy clause under three circumstances. Engbh v. GeneralEke Co.,
110 S.Ct. 2270,2275 (1990). First, Congress can define explicitly the extent to which
its enactments pre-empt state law. Id Second, in the absence of explicit statutory
language, state law is pre-empted where it regulates conduct in a field that Congress
intended the federal government to occupy exclusively. Id Where the field is one
that has been traditionally occupied by the states, congressional intent to supersede
state laws must be “clear and manifest.” Id (citations omitted). Finally, state law is
pre-empted to the extent it actually conflicts with federal law. Thus, the Court has
found pre-emption where it is impossible for a private party to comply with both
state and federal requirements, or where state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” Id
(citations omitted).

        None of these circumstances is applicable here. First, Congress has not
explicitly stated the extent to which the organic statute pre-empts ,state laws
pertaining to dual office holding or the characterization of federally-created
positions under such laws. Indeed, as discussed below, Congress appears to have
had no such purpose.

        Second, the field of state dual office holding prohibitions is one that has been
traditionally occupied by the states. Thus, congressional intent to supersede such
state laws must be clear and manifest. Id Nothing in the legislative history of the
organic statute indicates that Congress intended the federal government to regulate
state office holders’ capacity to serve on the board or to otherwise hold federally-
created offices, let alone to regulate that field exclusively.. Indeed,’the legislative
history of the organic statute suggests that Congress had a very different purpose in
mind in providing that members of the board would not be considered officers or
employees of the United States. See S. Rep. No. 480, 98th Gong., 2d Sess. 1,

       W.S. consl. art.vl, cl. 2

       %‘hcna federal statute and a state constitutionconflict,.
                                                              the supremacyclauseof the United
StatesConstitutionrequires that the provisions of the federal statute prevail. Alubamu-Coushutfa
IndianTnic of Taos Y.Mutar, 650 F. Supp. 2S2,289 (W.D. Tex. 1986).



                                      p.   249
The Honorable Thomas R. Phillips - Page 8                        (DM-49)




reprintedin 1984 U.S. CODE CONG. & ADMPI. NEWS5728. Prior to the enactment
of the organic statute, the United States Department of Justice and the state
executive branches had been directly involved in the appropriation offederal funds
for the improvement of state judicial administration. This arrangement threatened
to upset the delicate balance between the branches of government and the federal
and state governments, implicating the federal constitutional law doctrines of
separation of powers and federalism. See id at 5739-40,5742.*0 Congress appears
to have drafted the organic statute to provide that the institute is not an
instrumentality of the United States and that members of the board are not to be
considered officers or employees of the United States to remove the administration
of federal funding for state courts from the. executive branch of the federal
government in an attempt to avoid those constitutional difficulties. Id at 5739.
Thus, we conclude that Congress did not intend to define membership on the board
for purposes of state laws pertaining to dual office holding or to otherwise regulate
state office holders’ capacity to serve on the board.

       Finally, we conclude that article XVI, section 12, of the Texas Constitution is
not pre-empted on the ground that it actually conflicts with federal law. This is not
a case where conflicting la% make it impossible for a private party to comply with
both state and federal requirements. The federal organic statute does not require
individuals to serve as members of the board of the institute. Nor is this a case
where state law stands as an obstacle to the accomplishment of the objectives of
Congress. First, the general objective of the federal organic statute is to improve
the quality of the administration of justice in state courts primarily by providing
funding to state courts and other entities. The Texas Constitution’s prohibition
against justices of the Supreme Court of Texas serving as members of the board
does not thwart that general objective. Second, the purpose of the particular section


          loAs the Senate Report states,

               there were scrio~ diff~cultiu with an arrangcmcnt, whemby a dcps&ent of
               Um federal executiw branch . ..was in a position to idluena, hy fimdiag
               dwisionr, prcgrams undertaken by or on bcldf of state and local courts. This
               was particularly ironic because in the federal govemmcnt. in an attempt to
               maintain the delicate balana of separation of pnvcrs, the control of fcdcrsl
               funding to improve the federal courts was removed from the Departmeot of
               Justia and placed independently in the judicial brand! of the federal
               governmcnl.

Id. at 5739.



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The Honorable Thomas R. Phillips - Page 9              (DM-49)




that provides that members of the board shall not be considered officers or
employees of the United States appears to be to preserve the balance between the
branches of government and between the federal and state governments. The fact
that justices of the Supreme Court of Texas are precluded from serving on the board
does not thwart that specific objective. In sum, because Congress’ concern in
adopting title 42, section 10703(e), of the United States Code was to remove the
administration of federal funding for state courts from the executive branch of the
federal government to avoid federal constitutional diffkulties and not to regulate
state office holding, we conclude that the federal statute is not in actual conflict with
article XVI, section 12, of the Texas Constitution.

                                  SUMMARY

               A justice of the Supreme Court of Texas holds “an office of
          profit or trust under this State” for purposes of article XVI,
          section 12, of the Texas Constitution, which prohibits dual office
          holding. A member of the Board of Directors of .the State
          Justice Institute, created pursuant to title 42, section 10701 et
          seq., of the United State Code holds an office of trust under the
          United~ States for purposes of article XVI, section 12. The
          federal statute which provides that board members shall not be
          considered officers or employees of the United States does not
          pre-empt the state dual office holding provision- Therefore,
          article XVI, section 12, bars a justice of the Supreme Court of
          Texas from accepting an appointment as a member of the board.




                                             DAN      MORALES
                                             Attorney General of Texas




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The Honorable Thomas R. Phillips - Page 10      (DM-49)




WILL.PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RBNEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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