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                                                                                             587   ’

                       OFFICE OF THE AlTORNEY GENERAL OF TEXAS
                                       AUSTIN



        Eonorable0. H. Cmnesr
        statsAudttor
        AUS tin,   Texar

        Dear    S%Fl


                                                                        lolnlc   under


                 The faaotsreflect0
        letter6of JIme G, 1942, and
                  Tvo officers of th                           logmentService,ln
        December,19'10, ad dura    e                          1941, ncceptsd em-
        ployment vith a fim of                                the capaolty of per
        son~el dimotor   and am                              otor, reepectivolp.
        Such oaapluy?BeAtvaa DC                                    Cf PGW   t833eB I

                                                           t during Christma vesk
                                                           yroll OP the Stata or
        Toxafa as Assist
        Texas    stat0   mp




                                                  1 time by the contraotoro.


                                          vhtch leave coatinued for periods
                                dage o&ch, during all of vhich time they con-
                               peativo eIEp~ogmeAtwith said UOAtPaCtors~
                   4. After retutnzlng to vork for the Texas state Enploy-
         Imt  Gemice each of said offlcsre   VOB paid full tine end carried
         oA the payroll of. euoh contrsotors as a full-tl!ae eqloyea ior




        .. _
gcmomble C. X. Camem,       page 0


~eversl veeka,   duriq   vhlch   tins   they vore alro   paid full   ttie
by the Stab.
            You request our opinion as to vhsther or not the State
tiea authorized  to pny the salary of aaid officers   during 8~9 of
the acid perfods Of time.     At, 011 of the tines above referred     to
the Texas Stats Ikplo~ment ScrVlce     vas a division  of the Texns
TJAoapbyISent CoLIipc~SatiOAComlssion,    van sn agency of the BtEte,
C& lte of’ficers   and ez~ployeoe vere mployeee and agents of the
state of Texaa, by vhan they ~81’0 paid.
           The Tsxarr State EqlOyPlent Servloa vas created by Actn,
1935,~ 44th La~ialnture,   9~0 552, Chqpter 236, oodified au Art1010
522w2,,v. h. a. 3+ 3act.ion 3 of ssld Article IWade PI Pollovst
            ‘There ia hereby created vltkin tho EMrem of
     Lebor Ytatlrrtics     a divloion   to be l=lova a8 the Toxae
     State J3wlo3rc;ont 9ervlce,      responsible   for adrzlnister-
     ing 8 $ysttm of pubMa mploS;3ont OPClcoa for the
     purpose of (rasistln~ ernplogcrs to aecw8 enplopoea,
     and vorkere to mcure em@loymnt.             The Comlsslo~er
     of Labor .C:tatlaticB la authorized and d%reatod to es-
     tablish    suoh offices    In cuch parts of the 3tste as he,
     dean8 noceossrp &ad to 9~?%?ribo rules and rq~latloce
     not incon~lsttsnt vlth sny of the 9rovlslom          of this
     Act.*

             By hcto of 1936, 44th LeglLslsturo, Third Called %usion,
Pnge 1993, Chnpter 462# Gectlcn 12, AS umenf&U Acts 1337, 45th
Lcgtsltxturo,   9age I’D, Chs9ter 67, ~cctton 4, ‘ilre Texas state DA-
ployment 96rvLce ~a8 trcmsferrr?d to tba IJne;;ploj-nent Cmpensation
Cozamlssion 88 a divisioa    thereof.    Fne pertlnant part of said   Act
has been oodlfLad 88 Article      5221b-10, V, A. c, s.   ssid Article
readu in part aa follovsr
            “(a)  TeXa8 State FJqloymnt Servioa, as pmvidod
     Sorunder    Act of the Forty-fourth    Legislsture,       Rnkmsr
     Ssas~on, Chwter 256, 9s~~ 552, is hereby tmnsferrod
     to the Comisslon    ns e dirislon    theraof.       The Cola-
     slon through such dlvisicn,     shall wtabliah        and main-
     tain free public eEploysont offices        Z.A such   nmber   end
     in such places as may bo mcessary        for the proper
     admtilatratlon   of thLs Act, bnd for suwoaes of por-
     fozrPi.q such duties,   8s are ulthln the guvi.ev of’ the
     Act of Congresr entitled     ‘An Act to provide for thm
I
    gonorab1e.C.   8. Cavno8s.     PagO 3


         e,stabSlshment of a nstlonal        employment system and
         pop cooperatfon    with ths States In tho pronotion of
         such s stem and for other, purposea, ’ approved June 6,
         1933, 143 Stat. 113; USC, Title            29, Sectlcn 49(c) )
         as ammdcd.      It ah311 be the duty of’ the Comlsaion
         to cooperate with any offialal           or aScnog of the mitod
         States havS.113pwors OF duties under tho pro~lslons                 of
         the said Act cf Cagrese,         ~8 asmnded, and to do end
         perform all thixa       necessary to eecure to this State
         the benefits cf the uaid Act of Cmn?:reas, aa mended,
         In the promotlcn end msintnnance of a eretea of pub110
         employsmrnt off ices.       The provtslone     of the snld Act of
         Caress,     no awnclod, LWOhsroby aacapted by this
         state   Ln oonfomity       ufth Section 4 of said Act, and
         this State will observe and ccmplP with the requlxe-
         ments thereof.     Thu Texas Uhmplo~ont            Cmpensn t ion
         Cotmlssion in hezeby deslgmted             and aonstituted     the
         agency of thirr Slate       for tho purposes of astd Act,           The
         Dlracto,    other offlcsrs      3316 eu?loymi      of the  Fexns
         State Ewployment Sarvlce shall be appointed b7 the Cm-
         nrlrslon in accor5s~ce with repalstlono            pbsoribed     by
         the Dlreator of tho Untted States Euplogslent 3orvlce.
                 “(b)     Pimncingr      All nonLes received by this State
          under the said Act of Cca;:.recs, .a amnddcd, ~hnll be
          paid into the spatial         %zz;;loym?nt Sorv2ce hccoxnt’      In.
          t&s Uneqlqwent          Cc?a~,rnsatlcn ,;dmln2stretlon    Fund, and
          said monies are hereby nado available            to the Toxss UA-
          cmpl~cysxnt Coz~eoustion Co:lni.nsio~ to be expcmdsd aa
          provided by this Srctioa and by szid Act of Conjrasa,
          and any uncxpehded balance of funds appropriated              ar
          allousted      either by the State of Tcxss or the r’cderal
          t.ioverf3l6ant to tk.3 ‘I’exsl3 ststo l3l;nIl1oymnt Servlcl 08 n
          division      of the 3meau of &bor St3tlntlcs,           1s hareby,
          upon the passage of this Xot, transferred              to the special
           tBaploym6nt Serviaa        Account     in the Unemployment Cm-
          pensation Mmimlniatration F‘und. For the quurpoae of’ es-
          tabllahiny      and iastnteinlng     free publ%c employment of-
          fices,     t’ce Cnmioaic~     is authorized to enter into acre+
          LI0AtS with nng political         sukii.vlslon  of this State or
          vith any private,        and/or non-profit     or~znnlzation, and
          a8 a part of w          such a~rocrxmt the Ctmleslon        may ac-
          cept s~oniea, se~vicos,         or quarters as a contribution        to
           the special      li&.ploymnt Servioe Account.‘”
StmorablrC. 8. cbvnesa,page 4


           It till be mm      that the tvo mqloyek of the state
Employment Service, here under oollrsldersticn,        oocupled responsible
positlone   In the diacharze of vhS.ch they wore mqulred to exeroise
discretion   and juWont,       and, by statute,   verb required to assist
en~loyees in obtaining employment. and to yist            ac;ployers in
;~‘~~,enployees,       Ln the opcmktion of a. free public enplo*ymont
            The very name8 OS tho positions       held by much employees
lmlica~o that thoy vere, in a meanure, required to porfonn the
Identical   service,    in their second mployment, which the statute
r~qulred thm to performfor the State.            For the perfo,msncs    of
that ~e~vlc~     ther vere beinp; pald by the State, while at the same
tlm they wore belnS paid for such eoDloymnt by a private conown.
The recor*d ~twm5 to indicate      a fclthful   discharge,    by saah of said
cnployeas,    oi’ all the duties oved by thecl to the State as vell as
to their private employer.
           The statement of hcta,   houever, makes It apparent that
the two employxedte are lrmonsietsnt    and lnconpatlble.   such em-
ploymont roqulred the employee to reprensnt the State es its agent
on the one hcnd and the private employer, as his &Sent, on the
other.   The internsto  of said two ~rl.xmip~~ls WOPGdlvopae, and l.n
aany Instances wore probably confliating.     Duo1 a,;ency, under such
01Pcllm tnnOt?B, lo contrmy to public policy and vi11 not be pemlt-
ted.
           \Ja have heretoCope hold, ‘A our Op+inlan RTO.O-~2814, a
copy of vhich 1~ enclcjaed horevlth,      that a State ezployes la not
entitled  to receive pry for a vacstlon not taken vh1le he is LII
the enploy of tho State.     It   Is equally   clear that an cnployee of
the State voul.d not be entitled      to receive pay for legal holidays
occurpins after the twewance of his employment tith the State.
It seems that each of said employeoe be@n vork for a private
employer abmt Deceuber 22, l$+O.         It 1s our viav that vhea such
enployeo cntomd upon his private employuent, won though he be-
San such mploynent dorm         a poriod dcnozln8ted the Chriatnas
R$:pdy5,   hln period of oocupatlon as a State employee van tern-
          Such employee MB entltlod        to recofve pay from the State
of T&J for all aorvlcos rendered by hln to tho State up to the
date vhen he tomlnntod hia period of service vith the State by
accept%nS enploymant vith the private concern.         Xe vaa entltled
to recelvo no further ofrm from      the State, and the State vsa au-
thorized to pay no further ewn on account of his mployxent           until
after the employee had been released by sold private errrploysr.
                                                                                   -.
                                                                                        591




            The actton of     8al.demployeerIn acoeptlngemploymentOS
. private employer ia repugnant to the idea of COAthWd employ-
ment by the stite.      It mqulred them to be iIi;BAtB   of the Stnte on
the one hand and of the private employer , OA the other, under cir-
~~stanaas vhere the lntormts        of the two might easily be ln con-
fll.ct.  3uch  8  contract  tends  to  corruption end 1s ncainst pub110
policy.   ‘The   tendency  of nuch  an  agoement,  and not the rooult
or motive, 18 declnmd to be the test of it8 legnlity.”          Am3rlll0
ofi Coqmny VB. Raoh creek Ollk          Oarr Company, 271 S. U. 145, vrlt
of error diemle8cd.
          As said ln the c&se of          Scott   VS.   K&o,     62   Clv,   /,,pp. 163,
130 8. w. GlOt
           “In all cases the princlp.yal is ontitled    to the
     best  effort and unbiased judpent     of his agent’, and
     tho lav, for ~CABOAB fcundod In public policy,       Sor-
     bide the agent’8 assumption oT a relation      vhich as-
     fords  temptations sntagotiatio    to his duty.’
           The rule-laid    dOWA %A thQ  CSBO   Of   Scott   VU. lkho   iB  the
lav as betvsen prlvnto pwtleo.        Certainly    it should not be more
relaxed In a c&se vhere tho stats la one of the princlpnla.               That
the agreczxnt here under oonaideratl.on      io aczlnst the public policy
OS thie state Is veil aettlod.      City OS Edluburz vs. Elllo,          (03~.
Of App.) 59 3. N. (2d) 39; !%iniken Vs. PO!:Bs, 15 Tex.~ 1208 Will&,
VB, hbbey, 27 TQX. 203; DC&OA vs. h%lto, 9 Tex. 598.               V:e same
rule Is announced in Unltad Staten vs. Cwter,              217 3. 3. 286. The
Follovlng pertinent    quotrrtlon 1s taken Sxwm the Crrlifornla case
Of Stockton Plmbing & Supply Company vs. wheelor, 229 P. 1020r
                ‘!I% prLnclpte upon which public officers              am
     denied the right to make contracts                   in their ofSlcln1
     capacity vlth thenoelves or to be or become lntexxt-
     ed In contrxto              thus made Is evolved from the salf-
     evident truth, es trite and inpregwble                    08 the lav of
     graVit&tian,          that no psrson cnn, at on0 and the swe
     tine, falt&%llg               Eerve two masters rcpreeont~          di-
     VOPBO        or inOOASiBtt3At       iAtWaEtS    Vith   respect to the
     eorvico he performs.                The prinoiple     h%s nluape beon
     one of tho esfientia]. attributeS               OS every rst5.0~1 BSB-
     ten OS poeltlvo             l&v, even reaching to private ocntraoe-
     ual tmnscotioas,               vhoreby there are oreoted       between
     S.ndivldualo trusts or Siduolary relations.                    The voice
                                                                         592



@nOrPbl@ C. H. Cavneq    Pago 6



    oS Clvlnlty, spaakiag from wlthLn the subllxmst  ZA-                       1
    carnation ~AOVA to all hlistory, proclnlmed and em-
    phasized the mixin! nearly two thousandpeora ago OA         .
    oooationaof lnSlnlte83m3dne8s.’
           We 0On0bde that SincO it iB COAtl'Wy to the publlo
p~llcy of this ztata thut lta ogento should, at the asrw U&e,
~pm86At IA the same C3pGOlty, Othdr p~h~ipals       oS diverse in-
tsMst,s, for the statedre38on thzkt no 6mn a&n serve two maatera,
vhcn eopiopnent vao accepted by such employees, aa agsutsof the
oontractons,   thGy ae%w3 to be et~ployoae of the State OS Tes88,
6~d thnt such en$oyaor    uere not entitled  to recel?re  any elzlary
Srcnr the Stcrto OS Texa6 at any time aubsaquucat to the d3te of their
accoptanoeof such ez;?loymmt , until they had acwsd to be m FEZ-
ployed.   hoaordln;;lp, VQ hold th3t such dusl engloymmt ~8~shigh-
ly mroper     and that ft should never have Imen  petitted,    Aor
should .%ny oomper?BaticA b5Ve been aaid to asid sl;ployees by the
State, durbg my of the pall&n       af tine shout vhlch you Inquire,
if the f3ote were knovn to the disburoS.ng OffiC0l'B.


                                         ATTO~     0-m        OF TEXA3



                                         m3d&        Fowler    Rbberts
                                                          Assistant
