Case Information
*1 ,
THZ ATTORNEY OBNBlAL OF TEXAS
Austin, Texas
Honorable Yllllsln M. Whyburn, President
Texas Teehnologloal College
Lubbock, Texan Opinion No. O-6232
DearXr.Whyburnr
Rs: Whether or not the Presl- dent ot the Texas Techno- logleal College may ale0 serve as Chief of the Operations Analysie Sea- tlon (U.S.) and Inalden- tal que8tlon8.
owe beg to aaknowledge receipt of your letter aa f011ou81
."I, should like to request a rul+ on the foli&w%ng ,P*tter.
'On S8pt8mb8r Zlth, 1944 I amum& my duties M Presldont of the Texae Te&nologlaal College and uu plaoed in8titution. on the, offialal payroll of that
Prior to that time I held an ex- oepted appolntunt with the IS. 3. War Department U an 8x@ert wmfmltant with speoIfIa aanlgrnnent a8 Chlei, Operation8 Analylrls SMtlon, Head- quartern, Third Mr Porce, TEapa. Florida: Can- pansatlon ?or thlr earvIce wae on a baa18 of $25.00 eaah day on which aatual servlae WM peLetifor The haraoter of the remlees rendered
unde+ thilr appolntnumt the diffioultp of' find- ing a suitable replamnent for me makes neaeerrary the oontlnuation of the above named War Department appointment until suah a t&me as Its dIsaontInua- tion Is Indlaated by the Air Foroes.
*It Is expeated that be@nnIng with the month of Ootober there will be several days out of each month when I aan be away from my duties at this uollege for servloe with the Third AU? Forae. Par Such days It i8 proper that I rWeiVe COC4phlratiOn *2 Honorable Wlllima X. Whyburn - Page 2
from federal fund8 and rooordingly that I not receive oollega funda. I am aware of the Texas Conatltutlonal provI8lon aoverlng this eituation. It Is my lrtrong desire that the portion of ay State salary thus released be added to the fund8 of the Texas Teahnolog- lcal College. Slnae oerteln of my dutIe,s here will need to ti perfonued by othem, and any saarlflae of 8erviae due to my ab8enae will be made by the College itself, It 18 my hope that the adjustment oan be made through my making a refund to the~College of the exact amount paid to me.as college 8alary for the daye when I am serving the War Department. Ray I requeet a ru&y from your offioe on the legality of euoh
xn order to alarify a8 muoh as pOS8i-
ble thi nature ot mu amoIntment with the War Department, 1 IDI enim&ag eert8in oonfldentlal doawmnt8whlah I hope c\an b8 return8d ror my use later."
Sactim 40 or Artfale %VI of the Constitution con- taln8 the miairyt
"#o parmn +a.ll hold or exerdse, at the 881DLI time, mora tnan ona CrlvIl office of ealolu- ment, except that of Jwtlc8 OS the Peaoe, County Ccwlssloner, Rotary Publie end Poetmuter, offi- cer OS tha National Ouard, the National Quard Re- caex!ve, and the Offleers Re8erve Corps o? the United States and enlisted men of the National Ouard, the National Guard Rmerve, the Orguriaed Reservea of the United Staten, ,@nd retired ol'fioers of the United States Anay, Navy, andUrIne Oorpa and re- tired Warrant 0??108r8, rt#tfrcrd ttnli8t6d n8n of the United Stator Amy, Navy, and Rarlne Corps, unless otherwise epeolally provided herein. * * l )"
Se&Ion 33 OS the seme Artlole dealeresr "The aaoounting offiaem4 of this State ahall neither draw nor pay a warrant upon the trea8uzv In Savor OS anfper8on, for salary or aompen8atIon as agent, oiilaer or appointee, who holds at the mne time any other offloe or position of honor, trust, or profit, under thla State or the United zttt:"(J,,, exoept am presorlbed In this ConatItutIon.
Honorable William U. Whyburn - Page 3
It would appear that the position of Chief, Operations Analysis Section, with the U. 8. War Uepart- ment Is an offiae of emolument. The appointment 18 made under Section 9 of the ~llltary Appropriation Act of 15444 for an Indefinite period. The appointee is required to take an oath of office, and enter upon duties before any psyaent of salary can be made. The salary stipulated is $25.00 per biem. Moreover, the $utles of such Chief are defined by law.
These faute taken from the documents accompanying your letter appear to present the Indicla of an office as cmntra-dlstlngulshed frcm a mere position of employment. But whether suoh position be an offlao, we need not to de- cide, since it alearly appears~ that the same is a *position of honor and trust" under the United States, withIn the meaning of Section 33 of the Constitution above quoted.
This being true, it is clear the %nstltut1on for- bids the drawing orpaymento? anywam?antuponthetreosurg in favor o? yourself as President of the Texas Technologiti College lshile you eontlnue to hold the position of Chle?, Operations Analysl.8 Se&ion.
~l!he:e?fect o? Seotlon is to:gorbId paymeet out of the khte Treasury in such a&se, rather than to~imply a vaoatlon of the office or position.
Themany rulings by this deprrtamt hark baak to an opinion by Mrst Assistant Attorney Oeneral Cureton, later &Ie? Justice; holdln$ that LIeutenant Governor -8s could not be paid his 6alary while he held at the 6ame time the position of teachor of (OpMOn8 o? Attor- ney Cieneral, 1.912-1914, p.
The following resent opinions by this department till1 show the frequent reautinae o? the question, and will also illustrate the respeutive faatual situations lnvolvedr (atate Health Offloer and Speolrl Agent
No. O- 5" Mau of Cemus f
No. O-1421 (State Q??iaer and Deputy Game Warden of U. 8. without pay); o-2388-~ (*ployee Livestoak Sanitary Camala-
81On employee Predatory Axliasal DiVi8iOn Of the Bureau of Biologleal MvI8lon of the U. S.)I O-2607 (Physiaian employee of two State In-
stltutlons);
Honorable Wllllam N. Whyburn - Page 4
No. O-2701 (Old Age Pension Investigator snd member Board of Trustees of Independent Sahool District);
No. O-2769 (State employee snd National Ouards- man holding an offiae or position of trust in the active seTvice I;
No. O-3061 (An opthtiologist employee of State ,eleemos axy InstltutIon and also of Departnent Public Welfare 1 "r"
No. O-3788 (Mreator of DIvlsion Department of Health and part-time employee of Division of Department of Rducatlon);
No. O-3693 Dlstrlet Attorney inductee in the Army of the U. S. I ;
No. O-3542 (State Representative 'and loyee of ; Federal Government as printer at Fort San Houston -5 No. O-3335 State employee and dra?tee under Selective service Act I ;
No. O-2991 (X8mber -d-o? Mreetors, Texas '%ille$e of Arts and Industries and County Superintendent of Public Instruotlon):
No. O-3045 (Inwstlgtor for State Board of
Wedlcal RxawIners and spealal Ranger):
No. O-4902 (Baployee of State-owned oollege and employee of a sahool district part-time basis)~ Rnployee'teacher of A. & R. College
No. O-4908 and City Ccmmlssloner f I O-4562 (Head of Department of Oenetlcs,
A. Q n. College member State Seed and Plsnt Roard)i O-4433 (Teachers of publla rchool system of Lubbock County and praotlae teachers for Texas Technological Oollege); (State Representative and Induutee in
No. O-4 Anay of the U. S. ; Y-j
No. O-5107 (District Judge snd Public Wember Regional War Labor Board):
- Honorable Will.iam N. Whyburn - page 5 O-5123 (ParlIementarlan to the Senate and
mployee of Old 0 Assistance Mvision, stat0 Departaent f of Pub110 Welfare 7
No. O-5157 o&ember Board of Re@ntS Texas State Teacher8 Colleges and employee.of an independent sahool distrlot);
No. O-%3 (Pre8Ident, College of Nine8 and Metal- lurgy and Public Panel Member of Reglonal War Labor Roard)~
No. O-5317 (State Representative and employee of a State Department );
No. O-5369 (Mreotor County Health Unit and part- time Medical Examiner for hospital established by State Department of Health in cooperation with the Federal 4loverment ) :
No. O-5281 (Desn of the ilhitnrsity of Texas Dental School and member State Board of Nealth)j O-5525 (Gonsultant to State .Heilth Officer and teauher in State Nedlcal School)$
No. O-5608 (IDrployee atate D8partment of i@rI- culture andmember PpMcRoll Worm Cami8sion).
Our ~oml~sIon In this case supported by the abow opinions.
The dooments mentioned by you am herewith retuned.
Very truly youm, ATTORNX OWHRAL 08 TEXAS Ilp /a/ g;z zet Assistant OS-m
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