                 %%IE       ATTO           NEYGENERAI.
                                 ~FTExAS
                                AUSTIN      11. TEXAS
PRICEDANIEL
ArrnRNIlY OmxXR<wr.


                                April     30,    19.52

         Hon. C. B. Cavness               Opinion No. V-1445
         State Auditor
         Austin, Texas                    Re:     Legality   of the State’s
                                                  paying compensation to a
                                                  member of a district
                                                  board of supervisors     of
                                                  a soil conservation    ais-
                                                  trfct   for services ren-
                                                  dered at the same time
                                                  that he is receiving     com-
                                                  pensation from his dis-
                                                  trict   as an employee
         Dear Sir:                                thereof o
                       Your request     for,an    opinion,   in part,   reads
         as follows:

                     “In connection with our audits of the
              State’s   Soil Conservation Districts       or an-
              lzed under the provisions      of Article    1f 5a-
              4,  we have found some Instances where
              Boards of District    Supervisors have appoint-
              ed one of their Members to certain manage-
              rial or other autfes,     and provided compensa-
              tion for such servfces.       Examples:     respon-
              sible for renting the District’s       equipment;
              keeping the equipment repafred;       collectfng
              equipment rentals;    and keeping the records
              of the District.     The Board Member is paid
              either a monthly salary or a per ‘cent of
              the rental receipts    collected.
                     “During the same perfod the Member, as
              a District    Supervisor,   receives    per diem and
              traveling    expense out of the State’s       General
              Revenue Fund from appropriations         to the State
              Soil Conservation Board, fn accordance with
              the provisions    of Article    165a-4,   Sec. 6.
                    “Please advise us if it is            legal for a
               Member of the Board of District            Supervfsors
               of a Soil Conservation District            to be paid
               compensation from the State as            a Member of a
                                                                     ..




Hon. C. H. Cavness,      page 2    (v-1445)


         Board of District Supervisors and at the
         same time be paid compensation directly
         from his own Board for additional  ser-
         vices to his own Soil Conservation Dls-
         trict.”
            Article   165a-4  Vernon’s civil      Statutes,
 the “State Soil Conserva c ion Law,” was enacted by
the Legislature     pursuant to the duty Imposed upon it
by Section 59 of Article XVI of the Constitution            of
 Texas “to conserve soil resources and prevent soil
 erosion w and to restore the fertility        of soil,    one
 of the 8 tatecs most important natural resources,          and
 for other closely    related purposes.     It provides for
.the creation   of soil conservation    districts    which
 shall be governmental subdivisions      of the State, pub-
 lic bodies corporate and politic,      exercising     govern-
 mental powers for the purposes stated therefn,          ln-
 eluding the power to act as agents of the State in the
 performance of certain duties resting upon the State.
             This statute provides that each soil conser-
vation district     so created shall be divided into five
subdivisions    by the State Soil Cor,servation Board and
from each subdivision       there shall be elected in the
manner therein provided one supervisor.            These five
supervisors    constftute    the district    board of supervf-
sors, the governing board of the district.             The stat-
ute prescribes    the supervisors’      tenure of offfcs,
powers and duties;      fixes their compensat%on for cer-
tain services    and mileage in connection        therewith;   and
authorizes    the supervisors    to designate a chairman, a
vice-chairman,    and secretary of the board,
              Sectfon   6 of Article   165a-4,   in part,   pro-
vides:
               “A supervisor may receive compensa-
         tion for services not to exceed Four
         Dollars ($4) for each day he shall be in
         attendance at the regular meetings of the
         Board of Supervisors..and Five (5) Cents
         per mile for travel each way between the
         residence  of a supervisor and the desfg-
         nated business office    of the district su-
         pervisors.   Supervisors   shall be paid
         quarterly for their services,    and may not
         receive compensation and mileage for any
Hon. C. H. Cavness,        page 3    (V-1445)



     number of days In excess of five (5)
     in any three-month period,   except OAO
     member of each Board of Supervisors
     shall be entitled  to receive Four Dol-
     lars ($4) per day not to exceed two
      (2) days, and Five (5) Cents per mile
     while attending an annual State-wide
     meeting of supervisors   to be held at
     a time and place to be determined by
     the State Soil Conservation Board.
      . . .
            “The supervisors   may employ such
     officers,   agents, and employees, per-
     manent aAd tegporary,     as they may re-
     quire, and shall determine their quali-
     fications,   duties,   and compensation.
     The supervisors    may delegate to their
     chairman, to one or more supervisors,
     or to one or more~agents or employees,
     such powers and duties as they may deem
     proper.    . . .H
            The appropriations from which the per diem
and mileage are to be paid supervisors     Nubile attend-
ing an annual State-wide meetingH and for llattendance
at the regular meetings of the Board of Supervisors”
during each year of the current biennium are contained
respective1    in Items 1, 2, and 12 of Article     III
House Bill z 26 (the general appropriation   bill),     Acts
52na Leg., R.S. 1951, ch. 499, p. 1228, at page 1424.
              Subsection    10 of Section    7 of Article   165a-
4 provides:
          "The Supervisors          shall have no
     power to levy taxes.           . . .I’
           However, Section 7 specifically  authorizes  a
board of supervisors  to render numerous services to oc-
cupiers and owners of land within its district   and to
receive compensation therefor for the use and benefit
of the district.
              They are also    authorized:
           n         to acquire by gi~ft, grant,
      bequesi,‘dGmise,   or otherwise,   any
Hon. C. 8. Cavnrss,   page 4     (V-l%%


      property, real or p,erroaalito:r*-
      celve income from such properU     and
      to expend such income in carTying out
      the purposes aad provisions of this.;A@;
              to sell, leaso, or othrrwla&&s-
      ioieyof any of Its propert
      therein IA furtherance of
      of this Act;,. . .
      gifts, and contributloA5~In mOAe$;oeF
      vices, Qaterlals, or.otherwise
      the United States, or any of 145 a eA-
      airs, or from thiprState, or any o!5its
      agencies, and to use aradexpend auah
      BOASTS,  servloes materials, or contrl-
      butions iA CslrryiAgOA it5 OperatlOAS."
          The funds of a district are those dsrlvrd
from ORB or more of the sources mentioned in Article
165a-4, and ray be doslgnated as "local iand. or
those granted to it by the Stat6.1 It Is fPom OAB or
both of these ftmds that a board of supervisors pays
on6 of Its members for servl.085such as those m&n-
tloned fn your letter. Neither of these funds is de-
posited IA the State Treasury. The local funds of
the dlstrlot are under the control.of its board of
sup5rvisors. The iand granted by the State to a dls-
trlct are required by the terms of the grants to be
deposited "with a @ate or Nitional bank or banks* and
my be withdrawn only on approval of Its board of IN-
pervisors by check or order signed by the chalrmen and
secretary of the board.
            &OtlOA k-l Of Article    XVI   Of   thd   COAStitUtiOA
of   Texas provldrsr
            90 person shall hold or rxer~lse,
       at the same time, more than one aff$cr
       Of 05l&UleAt. . s .'

            Section 33n;pfthe same Artlolr drolaresr
            q Thr acaountlng offlcrrs of thle
       State shall neithrr draw nor pay a WiW-
       rant upon the Treasury in favor,of any

     aqz         7        fistLag. Res. 3;449 ch 540
p. 100   i~jB'1%5:_~'~.C.S.)'j H.8. 190 Act: 52;d L&,
~~-8. 1951; ok. 497, i. 1206 C&t. 165a-b,  v.c.s.).
Hon. C. H. Cavness,   page 5    (V-1445)


     person, fork salary or compensation as
     agent, officer,   or a@pointee who holds
     at the same time any other offi,ce or
     position  of, honor, trust or profit,
     under t,his State or the United States.
     . . . II
           This section contains numerous. exceptions,
but none of them is applicable   to the situation  un-
der consideration   here.
            There is a well recognized  distinction   be-
tween an office   and a position  of employment.    This
distinction   is clearly stated in I(nox v. John pg 141
S.W.2d 698, 700 (Tex. Civ. App. 1940, error rif.j,       as
iollowst
           “It may be &ated, as a general
     rule deducible from the cases discussing
     the question,  that a position   is a pub-
     lic office  when it is created by law,
     with duties cast on the Incumbent which ”
     Involve an exercise   of some portion of   ”
     the sovereign power and in the performance
     of which the public is concerned, and
     which are continuing in their nature and
     not occasional  or intermittent;   while a
     public employment on the other hand, is
     a position which lacks one or more of
     the foregoing  elements.”
            When the numerous provisions     of Article
165a-4 are considered in the light of the foregoing
generally accepted rules for determining whether a
public position     is an office or one of employment,
we think the position     held by a supervisor   of a soil
conservation    district  is a public office   emolument,
and the holder of such an office      is, of course, a
public officer.
             It is also our opinion that the position
held by a supervisor     of a soil conservation   district
who has been employed by his board of district        super-
visors to perform certain duties for his district,
such as those mentioned in your letter,       for which he
Is compensated by the board from funds belonging to
the district,     is that of a public employee, a “posi-
tion of honor, trust or profit under this State,”
founded on contract between him and his board of su-
pervisors.
Hon. C. H. Cavness,   page 6   (V-1445)


           Consequently,   the prohibitive  provisions   of
Section 33 of Article    XVI of the Constitution    are ap-
plicable  here and impel us to answer your question in
the negative.
           This opinion Is limited to the specific    ques-
tion submitted.   The question of authority    of a board
of supervisors  of a soil conservation  district   to em-
ploy one of its members to perform services for the
district  and pay him therefor  out of the funds of the
district  is not before us9 hence we express no opinion
thereon.


            A member of a district    board of super-
     visors of a soil conservation       district    cre-
     ated under Article     165a-4, V.C.S.,     is a
     public officer.      When such a member is em-
     ployed by his board to render managerial or
     other services    for his district     and for
     which he receives     compensation from the funds
     of the district,     he kids   at the same time an
     office   of emfilument id also a position        of
     honor, or tx~~st; or profit under this State.
     Consequent,l.y, h.e cannot be paid by the State
     for any ?ff”icial    services which he may have
     rendered during the, time he was so employed.
     Tex. const* ht.      XVI, Sec.~ 33-
APPROVED:                             Pours 'vexy tPuly,

J. C. Davis, Jr.                        PRICE DANIEL
County Affairs Div'lsion              Attorney General
Mary K. I*!all.
Reviewing Assistant
Charles D. Mathews
First As,,:,-.Cant                             Assistant
BWB:wb
