*1 ENERAE Honorable Clifford B. Jones, Resident

Texas Technologioal College

Lubbock, Texas

Dear Sirr Opinion Number O-4902

Re: mother State College may employ part-time music instructor who mill be employed on part-time basis by school district at same time.

pie have received your letter of recent date which we quote, in part, a* follcssr

"A rather heavy enrollment in our Rusio Department (Band) requires an additional part-time instructor. A simplification of the matter, in keeping with economy indi- cates the advisability of employing a part-time instructor.

"The Lubbock Public Schools are confronted with 8 similar situation, and the problem could be solved if the said Public Schools and Texas Teohnological College employ a man who is available, they to use him for a portion of the time and we to use him for a portion of the time at en expense to us of (600. There would be no overlapping with respect to services~ that is to say, we would not be paying him at a time when he was engaged with their instruc- tion, and the converse of course would be true1 namely that they would not be paying him when he was engaged here.

"Will you be kind enough to advise us as promptly as possible whether we have the legal right to engage this instructor upon a part-time basis as outlined?"

A school teacher is not a public officer. Martin v. Fisher, 291 P. 2761 Leymel v. Johnson, 288 P. 659; 56 C. J. 382: 37 Tax. Jur. 1035; Opinions No. O-4669, No. O-4628, and O-371. Therefore, Section 40 of Article XVI, Constitution of Texas, which prohibits the holding of more than one civil office of emolument, is not applicable to the situation under aonsideration. You state that there would be no over- lapping of services, and we know of no reason why the duties of the individual as part-time instructor in the college should in any way conflict or be inoom ;;;;.",tmith his duties as part-time instructor of music in the school 5 .

Honorable Clifford B. Jones, page 2

However, we direct your attention to the provisions of Section 33 of Article XVI, Constitution of Texas. Said section provides, in part, as followsi

"The accounting officers of this State shall neither draw nor pay a warrant upon the Treasury in favor of any person, for salary or compensation a* agent, officer or appointee, who holds at the same time any other office or position of honor, trust or profit, under this State or the United States, except as prescribed in this Constitution."

The construction of Section 33 was involved in Opinion No. O-2607. We quote the following from said opinion:

"It is clear that this section does not seek to prohibit the serving of the State by one individual in more than one capaaity. The provision addresses itself only to the matter of compensation. Thus, a man may hold two offices, or an office and a position of honor and .

trust under the State, if no ocmpenaatiom attaohes to either place. &t if he holds an office, or is an agent or appointee, and to such place ccmpensation attaches, he may not be paid for services rendered in that oapacity during the period of time that he holds another position of honor or trust under the State or the United States.

From this general statement as to what the se&ion does and does not prohibit, we gather the general policy embodied therein. This policy seams obviously to ba that no person should receive compensation from the State for services to be rendered it, when during the time such compensation is to be earned such person, by accepting and holding another position under the State or the United States, has obligated himself to render 3ervices in ccn- nectionwith the latter position, so that he may not render full value in the first capacity for the compensation whioh the State has agreed to pay. So construed, we find that the Section is but one of the many in the Constitution seeking to place every conceivable safeguard about the expenditure of State moneys. So construed, this Section seeks to avoid even the possibility that the State may not receive a full quid pro quo for expenditures by way of compensation for services to be rendered in one capacity, by reason of the person serving in that capacity placing himself in such a position that he may be tempted to neglect the duties of the one place for the responsibilities of the other.

"Ana,lysed, Article 16, Section 33, provides thatr ".An (a) offioer, (b) agent, or (c) appointee for salary or compensation is not entitled to receive payment from the accounting offioers of the State of such compensation *3 Honorable Clifford 8. Janus, r<i.?c :.

if, during the same time that he holds the place to.which such salary or compensation attaches, he also holds any other office or positions of (a) honor, (b) trust, or (0) profit."

There cen be no doubt that an instructor in a Stete supported college'is "agent. officer, or appointee", end although we have hereto- fore stated that a school teacher does not hold en office, we are of the opinion that he holds a "position of honor. trust or profit".

In view of the foregoing you are respectfully advised thet e person may legelly serve es pert-time instructor in a State supported college end et the same time serve es pert-time instructor in e school distriot where the duties attached to each position do not overlap end ere in no way inconsistent3 however, in doing so he forfeits all right to any salary or compensation to which he might heve been ontitled es instructor in the college.

This conclusion is consistent with those announced in previous opinions of this department with reference to Section 33 of Article XVI. In Opinion No. O-1422 it ww held that e person hay simultaneously serve on the board of trustees of en independent school district end on the board of directors of the Texas College of Arts end Industries, but that in doing so he forfeits all right to compensation to which he might have been entitled es director of the college. It was held in Opinion No. O-2528 that while there was nothing to prohibit an inspector for the Texas Liquor Control Board from serving also es trustee of en independent school district, he would be entitled to no compensation es inspector for the Liquor Control Board if he served in both capacities. In Opinion No. O-2607 it was held that if a physician employed on e part- time basis by a State eleemosynary institution accepts end holds a similar place in another eleemosynary institution at the seme time, he is entitled to no snlary during the period of time thet both positions are held.

You state in your letter of request that the practice of employing pert-time instruotors, es outlined, is being followed by various independent sohool districts. Ge think it proper to point cut that the inhibition contained in Section 33 of Article XVI is applicable only to the State aacounting officers. It would not prevent the accounting of- ficers of e school district from paying an instructor of the district for services rendered. However, the State eccounting officers drew end pay the salary warrant issued to en instructor of e State supported college. Therefore, the inhibition would prevent the State ecoOunting officers from either drawing or paying e warrant in favor of en in- struotor for salary or compensation where such instructor holds et the same time sny other position of honor, profit, or trust as specified in the Constitution. This opinion passes only on the authorit of the collsge to

employ a part-time instructor under the fact situ* ion as outlined. x It

-. - Honorable Clifford 9. Jones. page 4

pesses neither directly nor indireotly on the quest!on whether there are funds appropriated by the Legisleture from which a pert-tine in- structor could be paid.

Very truly yours ATTORNEY C;NWAI,, OF 1'XSAS By s/George 5. Spark,s Goorps i;'. Sparks Ass~~stant \PPROVED OCT. 13, 1942

s/Gerald C. Mann

ATTOFNEY GENERAL OF TFXiaS

Approved Opinion Comittee Py WY Cheirmen