Case Information

*1 EATTOWNEY GENERAL.

OFTEXAS

PRICE DANIEL ATTORNEY GENERAI.

September 22, 1948 Opiaion No. ,V-689 Hon. C.H. Cavness state Auditor

Austin, Texas Re: Legislator teaching at State

supported ‘s~hoole effect of Sections ‘33 and 40 of Article Dear Mr. Cevness : XVI of ,the Texas Constitution.

You atete that your audit of a State college reveals that a member of the Legislature was employed as a member of the i’aoulty..

lie rorved as faculty member durLng the two-year term for which he was elated to the Lsgis’latur:ei but. only dur- tn its ~~remess. He was not so employed by the College ‘during Legislative sessions. &ring pert of such employtner.t, he was paid at the College out .of the State Treasury by warrant. At c’;e time of your lette:?, he was not being so paid, .bu,t was being paid aut of local funds or receipts of the College. Yoti Wibh to know ‘(1)whether elth,er or both such payments were legal; and (2) If they were illegal, vhat stepe should be taken.

Ycur question is or;e arising out of one person’s hold- ing two places of employment under the State slmultatreously; i.e., legislator and faculty member of a State-supgort.ed coZ:Lega. 40 oi Article XVI of the Texas Constitution

Section reeds :

‘%o persol shell hold or exercise,. at the same time, more than on’10 civil office of esolzi- Irent.. . . . . . f, of the same A:rticle provides:

Section 33 “The eccolictiF& officers till3 State shall neither draw nor pay a warrant upon the Trsasury in favor of any pePc8o?:i, for salary or compsndetfon as agerAt, officer or appoint,ea, vho holds at the

Ho&able C. H. Cavncss. Page 2 (V-689)

mama time any other office or position of honor. trust or profit under this State or the United Skks , . :

Section 40 above quoted has reference only k “of- It staks that, “No psraon shall bold. , . ‘ficem~ ef the Skk. more than one civil dffice , . .* There is a well rtcognloed dia- tiuction botwee~person who holds an “office* and a person who is au employee. Brlifly skted, an officer exercises aome gov- ernmental function: he is invested with some portion of the l ov- ereiputy. He is generally required to take aa oath, and a bond ia frequently required. MS duties are generally fixed by law. Au employee,” on the ether hand, hao such duties as are fixed by te him by an officer, be is Seaorally ebjeet contract or ayigwd to discharge at will of t&e officer. See Loard v. Coma, 137 S.W.(Zd) 880, writ refuaed$ Knox v. gobnsonT?;iig.%CJEJ)T98, writ refusedr Meecham on rubric-WCb. 1; and +kruey Oemural’e Opinions V-303, V-308, V-325, and V-462.

A Legislator unquertlonably bold@ a ctvil office of emolument. Mr. Jumttco Greenwood of the Tcxam Supreme Court in Terre11 2 King. 118 Tax. 237, 14 S.W.(td) 786, wrote: or 8enmkr

Vha office of rcpwmenktlw 4s 9 offiT of J~ouor, trust and profit under thts Iltpti’ . . .

The La,gimlakr holda nucb uffleo during the entire two-year term for which he was elected, evea though the Legia- letire mey be ia memdoa for only~a portion 6f such period.

A teacher or~profesoor cdlege, however, 1. nbt a gtak ‘0fficer.s He Is an employee. In an Attorney General’s op&Aoa by C. M. Cur&on, lakr. Chief JustIce of our Supreme Gear& a Lieutenant Governor desired to accept a position on the fa&ty of The University of Texas.2 Wfth reference to tire sk- ka at a Iprafemer, the opinion reads:

1 For similar rulings by the Attorney General. sea opinioas.N6s.

V-308, o-6578, and O-6458, ’ Report and C)pinion of the Attorney General, 1912-14, page 873. *3 Honorable C. H. Cavness, Page 3 (V-689) . . . a professor . , . secures his appoint-

ment from the Board of Regents, with whom he contracts. . . . (He) take8 no oath. . . e x ecutes no bond, and is subject to discharge at any time. “We think It clear . . . that he could only be classed as an employee . . . and not aa an of- ricer,-3

The prohibition of Section 40, above, is addressed to the simultaneous holding of two ‘offices”. It has been many times con&rued not to prohibit the simultaneous boldfng of an office and on employment under the Government. Thus it has been held ia former opinions that, as a matter of pure eligibility, a Legislator could also carve as a printer for the Federal Government (O-3542)1 aa an employee of the Federal Civil Service (o-5317); as a trustee of a school district, the latter not being an office of emolument (O-6269); as an executive officer the Board of Vocational Edu- cation (0-645g)r as an employee of River Authority (O-6578); and as executive secretary to a Board of Repeats (V-308). Similarly, Section 40 does not prohibit the holding of two positions as an em- ployee. Thus it has been held that a professor may also serve ns city official (o-371); on the Merit Couucil of T.U.C.C. (O-2601)1 ‘as a public school teacher (o-4902); on the Tire Ration Board (O-4458)1 and as a member of a State Seed and Plant Board (04562).

Therefore, since the pernon in question occupies but one “office,” he is not prohibited by Section 40 from also being employed by a State-supported college. And. conversely, he may nerve as Legislator while being so employed.

3 This is in accord with the weight of authority in other states.

The annotation in 75 A&R. 1355 concludes: ‘The courts are almost unanimous in holding that the position of a teacher is that of employee, resting on contract.. And 14 GJ.S. 1356 states: “*. . ordinarily a professor is not an officer, but OC- cupies merely a contractual position as an employee.” See also Butler v. Bd. of Regents, U. Wisconsin (1873). 32 Wis. 124; Hartfgan v. W. Vs. University (1901), 49 W. Va. 14, 38 S. E. 698; Talbott v. Public Service Comm. (1942). 291 Ky. 109, 163 S.W.(td) 33: State v. Ford (1944). 116 Moat. 190, 151 P.(td) 171; 55 Am. Jur. 9.

Honorable C. H. Cavnesr, Page 4 (V-6891,

However, even though tke same phrsod Inay legally occupy both placca~ under Section 40, tba matter of his compensa- tion p r~ents M l ddttional question. Section 33 Article XVI, to, ipplioe not ealy to officer~m but to emphyeee. &owe rdirred 11 provldear

Vho AcCounting Officers of this Mate ahall noMar draw no r pay l warrant on the Treamry in favor of any pawn. . , who holds at the same time any *er offico *r poeitiou of honor, trust or profit &or mtc or tke Udkd Statam . , .” Xt by boon ruiod my thee tbt l fwalty mwnbor M 8 8tmte edl*se hoi&s “a po+on d bosmr, trust or profit undo? obqvo reforrod to, it was &lo KtMo.e h &a oplnioa by Cue* bdd that if the Lhtoaaxt Owomor Mayor accepted tie position of profemor d jouraallrm.at Tlta Univermity of Texar, he could k wd for mdtber job. Ufmilarly, a profwror of the Univerrity ooubd mot bo paid from W Tnuory Leglrhtiw duthr while tuobtng in tha Auetia Publia khouxo (oplldolr V-325). T h e l me he& ,boen kid with refaroace to the dual eploymeat of faculty ahoers d TOXM A. I M#, Toxu Too&i , and the Dental Col- hge , the Medical College , and TOW 4. k 18

Bimilarly, under We provision, it has been ruled that, while a Legislator could be otheiwlao leplslly employed, he could not be paid by warrant on tke Treasury while occupying a porltioa ae Executive 8ecretary to a Board of Regenta (V-308)4 or while ervlq l 6 Executive Officer for tke &ate Board of Vocational ’ Where much faculty mmnbera also rerred on the Merit Council

d the T.U.Q.G. (0-g681); aa a member of ,State Seed and Plant Board (O-4562)1 M h member d Cotton llerearch Committee ~~4~~~ or a8 a mmmher of Stab Pink Woolworm Committee - .

’ College faculty member and high chool teacher in Lubbock

(O-4962 and O-4433). ’ Dean of the College And member of State Board of Health (O-5281), 7 Professor and Consultant of a State Venereal Disease Clinic.

(O-5525).

’ Professor and trustee of a school district. (O-2991).

Honorable C. H. Cavnesm,, Puge 5 (V-689)

Education (0-6455); or while holding a position with the Federal Civil Service (0-53It)r or the Psderal Typhus Control (0-7813)s or aa a U. 9. Government printer (O-3542).

The Legidator, therefore, was not entitled to be paid hy warmat from the Treasury rervices at tbe State college, mm&r &cuoll33.

What haa heretofare bea written has dealt only with M pyeaaats to the faculty member by warrant on tbe State Treus- -9 ‘Irrlortber 8mk rrlut the legal 8llr8tion ia with referenca to pw Smede by other thm St&e wmraats; i.e., payment Out of loaxfads.

A prrtrolp d Kutiou 33 ia repeated here o that itr l pOeKXa wOrdlu g with rafo ruce to such dirtidctioa muy be noted, If &I Ths Aocauatiq Offiuro af thie State ‘shall draw nor pay a wurrant upoa the Tre8sury..

mt .- Lo directed 8t payment8 out of the State The puMbiUa hasay oo warrate hued nnd paid by tha State*s Accounting OClleer& For re8momwkat kfmwn tm the Legislature, it lmr pro* vi&d at aacei~to eoileeted at the various colleges may be retained 10~alXy by the roikger 11 baakm of their owu ebooainp. Such money im rot nqnired C be seat to ‘Anatin to the State Treasury. The stat- atea wltb rhrau ti the deposit of money in the Treasury and its ritkdrrti tkerdrom have not kern made applicable to such locally rotdood fmuis, a8 W&l b lwreiaftor set 06

Tkore MO may rtrktre witk roferare to how md wken w8mnto may be drawa Treuawy. A college, however, retuin. end expend iti local fmmds. Thus lo uu~rined C cdlut. Section 1 of Article t654d provides that the governing boards of the v8rious ~AIoo~~:

*. . . aaap ret&b control respectively of the to-8 aw mosey collected ut each of eaid mmr8liaaYWGiad la carrying out the functions of an eduuaUaaaI l~titutlon~ ouch a@ fuudm collected frem 6tudont fee@ of all kinds; charges for use of rooma and dormitories: receipts from mealm, csfes *6 Hoaorable C. H. Cavness. Page 6 (V-689)

iad cafetartis; fees on deposit refundable to stu- dents under certain conditions; receipts from school athletic activittos; income from studont publications or otbat atudent activities; receipts from sale of publication products and miscclla- aeoas rupplles aud equipmonb students’ volua- tary doposits of money with eaid schools for safe koepingl all other foos and local institutional in- come of a strictly local nature arising out of hid by virtue of the educational activities. or reaeirch or demonstration carried oa by each and all of said neveral achoola.

-Sec. 2. Tbo governing boards of the ra- speetive lastitutions . ; . are authoriaed to select depoaibry basks as places of deposit of all funda of the ldud and character named in Section One 6. .v But the same Article further provides what money sbnll ba deposited im the Treasury; Le.. not be retained loeallyt

Vbe provisions of this Act shali not apply to any inCOrn derived from the Permanent Fund of the University of Texas, but all income derived from the Permanent Fund of the University of Texan and all incomo from the two million acres of land sot apart to the Uaivorsity Texas by the Consti- tutlon and by the Act of 1883, &all be deposited in the State Treasury and paid out oa Comptroller’s warrants aa is kow prcivided~by law. . . . .

Similar provIsions aro carried in the Act ~appropriat- Ing funds for the colleges. See Acts 50th Leg. (1947), Ch. 339 at page 669.a

8 See also the Appropriations Act for Public Junior Colleges which

operato largely out of local funds. It provides: ‘There shall be appropriated biennia’lly from money in the Stato Treasury. , . aa amount sufficient to supplement local funds in the proper support. maintenance. operation and improvement of tho Public Junior Colleges of Texas . . .- Acts 50th Leg. (1947), Ch. 346. p. 685.

Honoralto C. li. Cavnera. Page 7 (V-649)

An l xaminaM oa of other &atutes furthor ahowe that tke Legislature did not contemplate that local institutional re- ceipte should be deposited in the State Treasury. It is provided tht the StaW Treasurer shall racoive ‘all money paid into the Treasury and give a receipt therefor. Art. 4370. By Article 4374, all meaey recrivrd by the Troasuror shall be kept,in tbe and vaulb of the Treasury. Local funds, ia contrast, may deo be depoaibd Ir a local bask. Article 4371 provides that the Treaa- wet shall eou8toreign l ud pay all warrarits.drawa on tho Treaa- wy, axd i&t xo money shall be pdd out of the Treasury except Orr nrrukta d tlw Comptroller. Article 4374 designates the State Comptroller aa ck official who l hall.‘draw warrank on the Trear- WY** Local fuada may be spent by the colleges witbout the l srist- nae of the Comptroller a? Traaouror. Article 4372 provides that Treaawer l Ul keep aecounta of receipti and expenditures of UIO mosy of tke Treasury. aut Article 2654d provides that the governing hoarda ef the local institutions shall keop account of their receipt& .Articlos 4382 and 4390 requiro the Troasuror to keep l ww~aat eegibtsr and c8ah balance book. .Local fund ox- peu4ltwea wa wt listed thsroin. ~

It ir tkrafore apparent that tho Legislature hr anado a diotisction betweea fuadr which aro to be placed in the Treasury and expended only on warrants on the Treasury, and local fuadr. Saction 40 proMMta only psym’enta out of tho Traaowy wwarranb

‘The Accountihg Officer8 of this State shall withar dr8w nor pay a warrant on the Troaswy.. ,* A comporrble ituatioa arose in 1942 undir a former Attwxey Ckaerd, whero the qaostioa was raised an to tbe payment ef a teacher at a &ate Junior College whore such teacher imulta- uoaely held the dice of @uaty School Trwtee. That opiaioa (O-4&6) cordudeo:

“You state in pur latter that Mr. Bointnott, one of the County School Trustees. is teacher at Lamar Junior College. His position as a toacher ia clearly not an office, and Section 40 of Article 16 of our Constitution would not there apply. It ia our opinion that Section 33 of Article 16 of our State Constitution is not applicable to this situa- tton because no accounting officer of this State *8 .

Hoaorablo C. Xi. Csvnaee, Page B (V-689)

draws or pays a warrant on tho State Treasury in favor Mr. Bointnott as he receive8 his teach- from the funds of MIO school di5kiCt ing SbWy which employee him. , . .*

The same result wee reached whom a Uaiversity of Texas pzofoesor also taught in AusMa High School. He could not be paid by warrant OA the Treasury for his Uaiwreif/ work. Byt with rcforenco to his high school pay, opinion V-325 reads:

“This section (33) pertains only to the au- tbority of the accounting officers of the State to draw or pay a warrant upon the Treasury, and has nothing wbatevor to do with tbe authority of a city as a school district to pay the salaries of itm kacbers.”

The same result was roached 1~ O~~A~OA O-5087, where a County Treasurer aleo ervod as principal of a Coralcane high chool.

Similarly, where tho question wan as to tho compeara- tioa of a &gislator, should he accept simultaneous emptoymeat witha Texas Rivor Authority (whose salaries were not paid from the Troaewy). it was held that:

+ . . . he would not be permitted ta have a warrant issued to him compensation as Rep- raeeatative, though ho would be allowed to draw bie pay for the position held under tHe giver Au- thor1ty.e (O-6578)

We therefore hold that the person here involved may be paid from local ,funde of the College for his faculty services during the Legislative recess. But he may not be paid for eerv- ices at College by warrant on the State Treasury while holding ths office of Legislator, even during its recess. The payments to him from the Treasury for faculty duties were therefore wrong- ful and tho State is entitled to recover such money.

Since he was not being paid as a Legislator during the timo he was omployed at the College; and since ho was not em- ployed at the College during tha Legislative 505~510~~ funds paid to him as a Legislator are not ihvolved.

Honorable C. H. Cavness, Page 9 (V-689)

Before deciding what legal action should bo tsken TV recover such money, it would seem that the Legislator should bo given the opportunity to voluntarily repay such sum. If he rbrld refuse. and you so’inform us, we will proceed with that portion .of your opinion request.

One person may hold the office of Legislator and an employmont as a faculty member of a State college. However. he may not be paid by warrant on the Treasury aitber place while holding Wth. But, if the Legisl&ter teacbos during the Logirla- Uv8 recess. he may ,bs paid by the College, out of ‘local institutio~l receipts of such institution, the Constitutional inhibition relating only to paymenta by the State% ccountfng officer* by warrant on the Treasury. Coiut. of Tcxao, Ark XVI! SM. 33 and 40.

Youis very truly, ATTORNEYGENERALOFTEXAS #wz.~’ ,, d oe R. Craanhill Executive Assistant