Case Information
*1 THE ATTO~~-EY GENERAL OF TEXAS
Hbnorable J. P. Gibbs, Commlssfoner
Casualty Insurance Division
Board of Insurance Commlssloners
Austin, Texas
Dear Mr. Gibbs: Opinion No. 0-5896
Re: Whether tin employee of the State Insurance Commission, who performs certain'duties working full time, as required by law, in that particular posltlon may draw compensation from the State for this additional work before or after the hours he works in the regular position.
You vrite us as follows:
"In my department, I am confronted with a very serious problem in that after March 1, 1944, at least one of the members of my technical staff in a key position will no longer be with me because he is entering the armed services. For quite sometime, it has been a real problem for my small department to operate and try to supervise as Is required by law. The casualty business during the past year amounted to ap- proximately $~O,OOO,OOO in the State of Texas. Even In ordinary times, it was difficult to find available men qualified in actuarial science.
It is absolutely impossible, insofar as I can determine, for me to obtain anyone qualified in this particular field of insurance whLch is ab- solutely essential to the performance of the requirements Imposed upon my department by lav.
"To give you a very specific case, the Read Of my Automobile Insurance Sectlon, besides his actuarial capacity, must have the ability to know contracts and be.able to,draw up instruments to afford coverage required by the policyholders who pay normally $30,000,000 in automobile Ln- surance premiums. This department, as you know, la required to prescribe standard policy forms *2 Honorable J. P. Gibbs - page 2 0 -5896
for vorkmen's compensation and automobile lnsur- ante together vlth all the endorsements to be used In connection vith the writing of such business.
We now have more than 200'endoMement forms &lone In the Automobile Insurance Section. Th6 Head of' that section has been called Into the armed services, and I have pledged niy vora, as has been done by .
business and governmental Institutions generally, to bald the~posltlotis for the boys -entering the armed services In order that they might occupy such positions If and when they return. To my way of thinking, taking these boys back Into their - positions when they return Is a fundamental Amer- ican prlnclple.
"The members of my technical staff during the last year particularly have worked falthfnlly and dlllgently to perform the duties required. This serious problem presents to me the questlon of whether I can pay the present Head of the Workmen's Compensation technical staff who Is highly quall- fled for either of these two key positions part of the salary appropriated for the Director of Auto- mobile Insurance based on the number of overtime hours he puts In on this job and at the same time pay him the full amount of the appropriation for the job he occupies principally as Chief Actuary of the Workmen's Compensation Section to which he would give at least eight hours per day of his services.
"Section 15(b) of the current appfoprlatlon bill ,(Senate Bill 332) passed by the last session of the Legislature Is somewhat ambiguous. I should like, therefore, for you to advise me on the fo.l- loving question:
"Could an employee vho performs a cer- tain duty and working the full time as re- quired by law In that particular position draw compensation for this additional work after or before the hours he vorks In the ~~. regular posltlon? The additional vork per- formed after hours Is not In line vlth his regular work. _.
“AS this Is a very urgent and important matter, I~res~ectfully request your opinion at an early date. *3 , .
Honorable J. P. Gibbs - page O-5896
Section 33 of Article XVI of the Constitution reads In part as follows:
"The accounting officers of this State shall neither draw nor pay a warrant upon the Treasury In favor of any per&on, for salary or compensa- tlon as agent, officer or appointee, vho holds at the same time any other office or position of honor, trust or profit, under this State or theme United States, except as prescribed In this Con- stitution. * 4 4 4 4.”
We think your question construed In the light of the specific Illustration glven by you, should be answered ln the negative.
The director and actuary of your Motor Vehicle Insur- ance Section (Item 26 In the current approprlatloii bill) un- doubtedly is anagent or appointee, within the meaning of Sec- tion 33, above quoted whose compensation Is fixed In the appropriation act at $4000.00 per annum.
The other position mentioned by you, the head of the Workmen's Ctimpensation technical staff -- actuary and chief clerk -- is lIkewIse a position as an agent or appointee, '- whose compensation Is fixed at $4000.00 per annum by the ap- proprlatlon act, and both are positions of honor, trust and profit. So that It would follow perforce of the express terms of the Constitution that one occupying either of these posi- tions would be forblaaen to receive compensation from the State for services performed in the other. In truth, vhlle occupying both position8 he could be paid for neither.
The situation and principle here dlsciissed has been thus stated by First Assistant Attorney General, C. U. Cureton, afterward Chlef Justice of the Supreme Court, as follows:
"An analysis of the above quoted section of the Constitution results In the following: That the accounting officers of this State are prohibited from drawing or paying a warrant upon the treasury In favor of any person for (a) salary, (b) compensation; as (1) agent, (2) officer; (3) appointee, lf such person at the same time holds 2 position of honor, (3) any other (1) offlce, position of trust, or 4 posltlon of proflt, under II
this State or the United States.
"Mr. Uayes Is the Lieutenant-Governor of this State, and under the Constitution as above quoted *4 Honorable J. P. Glbbs - page 4 0 -5896
and discussed that la an office. It is llkevlse a position of honor and trust, and while It could hardly be said, owing to the very nominal salary paid, that It Is a position of profit, yet there 1s a compensation attached to the office of Lleu- tenant-Governor, which, be It great or small, Is Intended as.8 remuneration for the time devoted to the office.
"It is very clear, therefore, that &.. Hayes, so long as he is Lieutenant-Governor, could not under the Constitution draw pay from the State, ,a~~:;) agent, (2) officer, (3) appointee of the .
"As we have above endeavored to show that a professor In the University of Texas is an ap- pointee, or lnallmltea sense an agent, there- fore, Mr. Mayes could not draw a salary from the State as Professor of Journalism in the University. "The converse of the above proposition Is also true, and, therefore, Mr. Mayes, so long aa he was the agent or appointee of the State as a Professor of Journalism in the University, could not draw his pay as Lieutenant-Governor of the State, that being an office within the meaning of the Constitution.
"Therefore, should Mr. Mayes accept the posl- tlon of Professor of Journalism in the University and at the same time hold and exercise the duties of the office of Lieutenant-Governor, he could not draw pay for either such office o* such posl-. -- Opinions of Attorney General 1912-1914, tlon." p. 880.
Further analyzing the Constitution and expounding its meaning as to those servants of the State coming within its scope, that opnlon declares:
"The State can only act through representatives, and such representatives are divided Into tvo classes primarily. The first class Is that of officers, who may be either elected by a Vote of 'the people or re- ceive their commissions by appointment by virtue of some provision of the Constitution or statute, who take the oath of office and are generally required .-,. to enter Into bond for the faithful performance of
their duties 1 and such other obligations as~;are *5 Honorable J. P. Gibbs - page 5 O-5896
Imposed by the statute and who exercise some func- tion of government.
"The second class In the broader sense des- ignates all other servants of the government as employees of the government or some of its agencies or lnstltutlons, who hold their position by reason of contract made and entered Into by and 'between such person and some officer or agent of the State government who 1s authorized or directed to make such contract by some provision of the Constltu- tlon or statutes of the State. Such employee takes no oath and executes no bond and may be discharged at the pleasure of the appointing power.
The tenure of his position Is fixed by the con- tract made and entered Into between such employee and the appointing power, or It may terminate according to the contract at the pleasure of the appointing power.
"Under one or the other of the above two classifications a professor in the University must fall; that is, he must either be an officer of the State or he must be an employee, and we will now direct our attention to fixing the status of a professor asp one or the other." -- Opinions of Attorney General 1912-1914, p. 874.
That opinion has often been cited and quoted, and ve think It represents the true construction of the Constitution.
We appreciate the stress of present conditions as ft. ~affects the admlnlstratlon of the affairs of your department, will not -to be sure, but exigencies of whatever magnlttiae justify vlolatlon of a plain constitution.
Very truly yours ATTORNEYGENERAL OF TEKAS OS-MR-WC BY s/Ocle Speer
Oole Sp6er Assistant APPROVED MAK8,
s/Gee. P. Blackburn
Acting--ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BwB Chairman