                      The Attorney              General of Texas
                                       August    4,    1978
JOHN L. HILL
Attorney General


                   Honorable Lee H. Smith, President            Opinion No. H-1223
                   Southwest Texas State University
                   San Marcos, Texas 78666                      Re: Whether college president
                                                                may participate    in university-
                                                                sponsored continuing education
                                                                program for a fee.

                   Dear Dr. Smith:

                         You ask whether the President of Southwest Texas State University may
                   accept a fee for participating in a university-sponsored continuing education
                   program.

                          The continuing education programs are funded by the persons attending
                   them through the payment of a registration fee. Occasionally, members of
                   the university’s faculty, staff, and administration are invited to speak at such
                   programs for a fee above the salary provided by contract with the university.
                   The Board of Regents, Texas State University System, has recently
                   promulgated an order authorizing employees of Southwest Texas State to
                   participate in continuing education programs for a fee, limiting the amount of
                   time that might be devoted to such activities, and requiring the approval of
                   the participant’s supervisor.     University administrators   must use vacation
                   time or adjust their working hours for the periods in which they engage in
                   these activities.

                          You ask whether the President’s receipt of a fee for participation     in
                   certain seminars violates any of the following provisions:

                                1. The standards of conduct of State officers and
                              employees contained in section 8 of article 6252-9(b),
                              V.T.C.S.

                                2.    Article V, S 1.q. of      the   current   General
                              Appropriations Act.

                                 3. Prohibitions against dual office holding found in
                              article 16, section 40 and article 6252-9a, V.T.C.S.



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Honorable Lee H. Smith     -   Page 2     (H-1223)



       Article 6252-9b declares the policy that no state officer shall have any
interest which is in substantial conflict with the proper discharge of his duties in
the public interest. Section 8 of article 6252-9b provides in part:

               (a) No state officer or state employee should accept or
            solicit any gift, favor, or service that might reasonably tend
            to influence him in the discharge of his official duties or
            that he knows or should know is being offered him with the
            intent to influence his official conduct.

              . . . .

             (cl No state officer or state employee should, accept
           other employment or compensation which could reasonably
           be expected to impair his independence of judgment in the
           performance of his official duties.

 The President’s participation   in continuing education seminars for compensation
 raises the possibility that these sections will be violated.    However, we cannot
 determine as a matter of law whether or not this employment would violate section
 8 of article 6252-9b. That is a fact question, which requires close scrutiny of the
 circumstances of the employment.      It is for the Regents to determine, in light of
 the duties of the university president and the policy underlying article 6252-9b.
-See Attorney General Opinions H-696, H-688 (1975).
      Article V, section 1.q. of the General Appropriations   Act provides in part:

               None of the funds appropriated       to departments     and
            agencies covered in Articles I through IV of this Act shall be
            expended for payment of salary to any person whose
            individual line-item exempt salary is being supplemented
            from other than appropriated funds until a report showing
            the amount and sources of salary being paid from other
            sources has been reported to the Secretary of State and
            Comptroller of Public Accounts.

General Appropriations Act, Acts 19’77, 65th Leg., ch. 872, at 3141. The President
of Southwest Texas State receives an individual line item exempt salary and is thus
subject to this provision. & at 3086. See also Educ. Code 5s 51.002(a)(9), 51.006.

       However, we do not believe that money received for participation         in a
continuing education program constitutes a salary supplement. The Texas Supreme
Court has noted that “a salary is a fixed compensation for regular work.” Wichita
County v. Robinson, 276 S.W.2d 509, 513 (Tex. 1954). See also Kolcum v. Bs
Education of Woodbridge School Dist., 335 A.2d 618, 621(Del.uper.   19751 (salary is




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Honorable Lee H. Smith       -   Page 3        (H-1223)



compensation for official or professional services or regular work)., We believe that
 article V, section 1.q. of the appropriations act concerns the payment of extra
compensation for performing the regular duties of the position.           See Attorney
General Opinion WW-376 (1958). It does not apply to the receipt of compensation
for services which constitute no part of employee’s duties. We understand from
your letter that the President of Southwest Texas State has no duty to participate
in continuing education seminars and would not usually take part in them. He
participates only at the request of persons organizing the seminar. Thus, any fees
received for such participation will not be subject to article V, section 1.q.

      Article 16, section 40 of the Texas Constitution prohibits the holding of more
than one civil office of emolument at the same time. Article 6252-9a, V.T.C.S.,
concerns circumstances      under which nonelective state officers may hold other
nonelective offices. See Attorney General Opinion H-5 (1973). We do not believe
the President’s particision      in continuing education seminars would violate either
of these provisions. We have said that a university instructor does not hold a civil
office of emolument.       Letter Advisory No. 137 (1977). The employment at issue
here is intermittent.       See Letter Advisory No. 63 (1973). Even less than
employment as a universityinstructor        can it be said to constitute a civil office of
emolument.     Thus, without deciding whether the President already holds a civil
office of emolument, we can conclude that his work in continuing education
programs would not violate prohibitions against dual office holding.

       Finally, we direct your attention to section 36.08 of the Penal Code, in order
that you may be alert to insure that none of its provisions regarding pecuniary
benefits to public servants are violated.

                                    SUMMARY

            The President of Southwest Texas State University is not
            barred from participation in continuing education programs
            for a fee by article       V, section 1.q. of the General
             Appropriations Act, article 16, section 40 of the Constitu-
            tion, or article 6252-9a, V.T.C.S. Whether such partici-
            pation would violate article 6252-9b, V.T.C.S., is a fact
            question for the Regents to resolve.




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eED:
/
    DAVID M. KENDALL, First Assistant



    L&-&iL<~&man
    Opinion Committee   ’




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