                      The Attorney                  General of Texas
                                         December       22,    1978
JOHN   L. HILL
Attorney General


                   Honorable Bill Clayton                              Opinion No. H-1304
                   Speaker of the House
                   State Capitol                                       Re: Whether a member of the
                   Austin, Texas 787ll                                 legislature may be employed by
                                                                       the federal government.

                   Dear Speaker Clayton:

                            You ask:

                                 1. May a member of the legislature be employed by
                                 the legislative branch of the federal government and
                                 receive a salary?

                                 2. May a member of the legislature be retained on a
                                 contract for services by the legislative branch of the
                                 federal government and receive payment for services
                                 rendered?

                                 3. May a member of the legislature receive federal
                                 funds indirectly as the officer of a corporatibn when
                                 that corporation is the recipient of a federal contract
                                 payment or grant?

                            The last sentence   of article    18, section    40 of the Texas Constitution
                   reads:

                                 No member of the Legislature of this State may hold
                                 any other office or position of profit under this State,
                                 or the United States, except as a notary public if
                                 qualified by law.

                         We believe it is clear that a legislator           may not be a salaried employee
                   of a branch of the United States government.

                          Your other two questions involve legislators who directly or indirectly
                   contract with the federal government.    There is no specific prohibition in the
                   constitution  against a legislator contracting   with the federal government.




                                                   P.   5133
Honorable Bill Clayton    -   Page 2    (H-1304)



Attorney General Opinion H-698 (19751. The only issue would be whether the
language of article 18, section 40 relating to “position of profit” covers contractual
relationships.

      The Texas courts have not had occasion to construe the “position of profit”
language in article 18, section 40. A virtually identical phrase in the Alaska
Constitution    was interpreted  by the Supreme Court of Alaska.          That court
concluded that a position of profit was a salaried nontemporary         employment.
Begich v. Jefferson, 441 P.2d 27 (Alaska 1988). The California Supreme Court
determined that a “position” connoted an employment to render service at a salary
paid periodically and did not include an independent contractor.    Kennedy v. Ross,
170 P.2d 904, 908-7 (Calif. 1948). A federal district court also used the employee-
independent contractor distinction.   Karas v. Klein, 70 F. Supp. 469 (D. Minn. 1947).
Several Attorney General opinions have indicated that an independent contractor
does not occupy an office or position. II.   Letter Advisory No. 87 (1974); Attorney
General Opinions V-1527 (19511,V-345, &3       (1947).

      Accordingly, it is our opinion that available legal authority is to the effect
that a legislator is not per se prohibited by the constitution       from being an
independent contractor with the federal government.       Of course, any particular
contract must be analyzed on a case by case basis to determine if questions arise
under the ethics law, article 6252-94 V.T.C.S., or the common law doctrine of
incompatibility.                            ,

                                   SUMMARY

            A legislator may not be employed by the federal govern-
            ment, but available legal authority is to the effect that he is
            not per se prohibited from entering into contracts with the
            federal government.       Whether any particular      contract
            violates the ethics law or doctrine of incompatibility    must
            be determined on a case by case basis, depending on the
            contract and the facts of the case.

                                            Very truly yours,




                                            Attorney General of Texas




                                           p.   5134
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    Honorable Bill Clayton   -   Page 3   (H-1304)




    Opinion Committee

    jsn




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