Case Information

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R-1003 Auwrxr 11. -rExA= PRICE DANIEL ATTOR?aEY GENERAL

December i3, 1947 Mr. John W. Newton,

Member Board of Directors,

Texas A. & M. College,

P. 0. Box 3311, opinion No. v-462

Beaumont, Texas

Re: Whether a Member of the Board of Directors of ’ A & M College holds an Office of Emolument.

Dear Mr. Newton:

In your letter to this department you state that the State Auditor has questioned the legality of serving simultaneously on the Board of Directors Your of both Texas.A. & Mb. College and the Lower Heches Val-

ley Authority, in vierr of Seotion 40 of drtlols 16 of the Texas Constitution.

That article provfdes in part: “No person shall hold or exercise, at the same time, more than one civil office of emolument . . . . v ( Rmphas is amtK&oz this opinion.)

Unquestionably, both of these positions on the Board of Directors are “civil offices.” It will be so ‘assumed for the purposes of this opinion. But the oonstitutlonal prohibition is not simply against the hold- ing of two civil offices. To come within that Article the positions must be offices of emolument.

The rule is stated in Tex. Jur., 349, Public Orfloers, Sec. 17:

“The Constitution applies only to of- fices 0r emolument. fEmolument ( means a

profit, gain or advantage; hence may hold two civil offices the same II= where no pay, oompensation or pecuniary gain whew- _ attaches to one of them, provided they are at tachei not not lnCom~.rurwo lncompat ible o n *2 I

m. John W. Newton - Page (V-462)

The rule is similarly stated in State v. Mar- tin, (Civ. App. 1932), 51 S. W. (2d) gl5, whme rmt ran individual to hold the offices of school ,trustee and tax assessor was ohallenged:

"The constitutional provision does not, per se and as a matter of law, prohibit a person from holding the office of aohool trus- tee while also holding another pub110 office, for the simple reason that that provision a plies, arbitrarily, only to lcivil ofrice(s k of emolumemt,1 ~whereas the offioe of trustee of the Laredo independent school district is not one of 'emolument,* since the holders thereof 'shall serve without compensation.'*

See also Graves 1. M. Griffin O'Nei,l & Sons, 189 S. W. 778. Thomasnernan Count- Line.-ST ;?78 S. W. 312' rev. on-otdd&t%m.Gere

incompatible): 290 S, W. 152; and Attorney General's Opin- ions.O-1422 and o-2991. .Y

Since the statute creating the LowerNeches Riv- er Authority provides that the members of its Board of Direc- tors "shall receive as fees of office the sum of not to ex- ceed Ten Dollars ($10.00) per day for each day of service necessary to discharge their duties," that ofiice is one of emolument. Acts 43rd Leg., 1933, 1st C. s. p. 169; 21 V.C.S. 581; Opinion O-490.

However, Article R.C.S., with reference to A. &M. College, provides:

"Said Directors shall serve without com- .pensation, but shall receive actual expenses incurred in attending said meetings or in the transaction of' any business of the College' im- posed by said Board."

Since the Statute expressly provides that such direotors shall serve without oompensatlon, the provision for mere reimbursement of aotual expenses does,not make the orfioe one of %nolument.*

The.term "emolument" has been derined as mean- ing "peouniary profit gain, or advantage." Irwin v. State, (Tex. Grim. App. 19443 177 S. W. (26) 970. Bouviiirvs F Dictionary derines wemolumentw as "The

offioe or employment; that which is

for services, or whioh is annexed to *3 . -

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Mr. John W. Newton - Page (v-462)

Webster's New International Diction- $ywid: &ibi;dged) defines wemolumentw as'"BrOfit from ofrioe, employment, or labor; compensation, fees or salary."

We therefore hold, and you are so advised, that sinoe the of'fice of Director of A. & M. College is not one of "emolument, n the'statute expressly providing that such directors shall serve "without compensation." You may therefore simultaneously hold that office and ~the office of Director of the Lower Neches Valley Authority.

However, since both directorships are offices of honor and trust. YOU may not be paid from the Treasury ~~~~,~h~~ot~,t~e~~.~~c~~~n,“,‘~~~e~~

bursement for salary or expenses from either offiae, it Is not necessary to here decide whether "expenses" .oome ' within the terms "salary or oompensation," as used in Seo- tion ~33 of Artiole 16. That article reads:

"The accounting,officers of this State shall neither draw nor pa'y a warrant upon the treasury'in favor of any person, for salar or .+ oom ensation as agent, officer or appo n ee, the same time any other office or W* position of honor, trust or, profit under this State. . . ."~

SUMMARY Membership on the Board of Directors of. A. & k4. College, while constituting an office, is not an "office of emolument,w sinoe Article 2612 expre&ly provides that such members shall serve "without compensation." Hence one per- son may serve as a member of the Board of Dire+ tors of A. & M. College and the Lower Neches Valley Authority. Seotion 40 of Arti 16. How- ever, the Bcoounting officers of the State may not issue a warrant in his behalf for salary or omapensation while such person holds both offices. Section 33 of Article 16. Joe R. Greenhill

fgig!q&!&t Executive Assistant JRG:wb