Case Information
*1 , I ’ . . . . . ’ i
OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN
Eonorable 0. H. Cmnesr
stats Audttor
AUS tin, Texar
Dear S%Fl
lolnlc under The faaots reflect0
letter6 of JIme G, 1942, and
Tvo officers of th logment Service, ln December, 19'10, ad dura 1941, ncceptsd em- e ployment vith a fim of the capaolty of per otor, reepectivolp. son~el dimotor and am Such oaapluy?BeAt vaa DC Cf PGW t833eB I
t during Christma vesk yroll OP the Stata or Toxafa as Assist
Texas stat0 mp
1 time by the contraotoro. vhtch leave coatinued for periods dage o&ch, during all of vhich time they con- peativo eIEp~ogmeAt with said UOAtPaCtors~ 4. After retutnzlng to vork for the Texas state Enploy- Imt Gemice each of said offlcsre VOB paid full tine end carried oA the payroll of. euoh contrsotors as a full-tl!ae eqloyea ior . . _
gcmomble C. X. Camem, page 0
~eversl veeka, duriq vhlch tins they vore alro paid full ttie by the Stab.
You request our opinion as to vhsther or not the State tiea authorized to pny the salary of aaid officers during 8~9 of the acid perfods Of time. At, 011 of the tines above referred the Texas Stats Ikplo~ment ScrVlce vas a division of the Texns TJAoapbyISent CoLIipc~SatiOA Comlssion, van sn agency the BtEte, C& lte of’ficers and ez~ployeoe vere mployeee and agents of the state of Texaa, by vhan they ~81’0 paid.
The Tsxarr State EqlOyPlent Servloa vas created by Actn, 9~0 552, Chqpter 236, oodified au Art1010 1935,~ 44th La~ialnture, 522w2,,v. h. a. 3+ 3act.ion 3 of ssld Article IWade PI Pollovst ‘There ia hereby created vltkin tho EMrem of Lebor Ytatlrrtics a divloion to be l=lova a8 the Toxae State J3wlo3rc;ont 9ervlce, responsible for adrzlnister- ing [8] $ysttm of pubMa mploS;3ont OPClcoa purpose of (rasistln~ ernplogcrs to aecw8 enplopoea, and vorkere to mcure em@loymnt. The Comlsslo~er of Labor .C:tatlaticB la authorized and d%reatod to es- tablish suoh offices In cuch parts of the 3tste as he, dean8 noceossrp &ad to 9~?%?ribo rules and rq~latloce not incon~lsttsnt vlth sny of the 9rovlslom of this Act.*
By hcto of 1936, 44th LeglLslsturo, Third Called %usion, Pnge 1993, Chnpter 462# Gectlcn 12, AS umenf&U Acts 1337, 45th Lcgtsltxturo, 9age I’D, Chs9ter 67, ~cctton 4, ‘ilre Texas state DA- ployment 96rvLce ~a8 trcmsferrr?d to tba IJne;;ploj-nent Cmpensation Cozamlssion 88 a divisioa has been oodlfLad [88] Article 5221b-10, V, A. c, s. thereof. said Fne pertlnant part of ssid Article Act readu in part aa follovsr
“(a) TeXa8 State FJqloymnt Servioa, as pmvidod Sorunder Act of the Forty-fourth Rnkmsr Legislsture, Ssas~on, Chwter 256, 9s~~ 552, is hereby tmnsferrod to the Comisslon ns e dirislon theraof. The Cola- slon through such dlvisicn, shall wtabliah and main- tain free public eEploysont end offices Z.A such nmber in such places as may bo mcessary for the proper admtilatratlon of thLs Act, bnd for suwoaes of por- guvi.ev of’ the fozrPi.q such duties, 8s are ulthln Act of Congresr entitled ‘An Act to provide for thm *3 I gonorab1e.C. 8. Cavno8s. PagO 3
e,stabSlshment of a nstlonal employment system and
pop cooperatfon with ths States In tho pronotion of
such s stem and for other, purposea, ’ approved June 6, 43 Stat. 113; USC, Title 29, Sectlcn 49(c) )
1933, 1
as ammdcd. It ah311 be the duty of’ the Comlsaion
to cooperate with any offialal or aScnog of the mitod States havS.113 pwors OF duties under tho pro~lslons of the said Act cf Cagrese, ~8 asmnded, and to do end
perform all thixa necessary to eecure to this State
the benefits cf the uaid Act of Cmn?:reas, aa mended,
In the promotlcn end msintnnance of a eretea of pub110 employsmrnt off ices. The provtslone of the snld Act of Caress, no awnclod, LWO hsroby aacapted by this Ln oonfomity ufth Section 4 of said Act, and
state this State will observe and ccmplP with the requlxe- Thu Texas Uhmplo~ont Cmpensn t ion
ments thereof.
Cotmlssion in hezeby deslgmted and aonstituted the tho purposes of astd Act, The agency of thirr Slate for Dlracto, other offlcsrs eu?loymi Fexns State Ewployment Sarvlce shall be appointed b7 the Cm-
nrlrslon in accor5s~ce with repalstlono pbsoribed by
the Dlreator of tho Untted States Euplogslent 3orvlce.
“(b) Pimncingr All nonLes received by this State under the said Act of Cca;:.recs, .a amnddcd, ~hnll be
paid into the spatial %zz;;loym?nt Sorv2ce hccoxnt’ In.
t&s Uneqlqwent Cc?a~,rnsatlcn ,;dmln2stretlon Fund, and said monies are hereby nado available to the Toxss UA- cmpl~cysxnt Coz~eoustion Co:lni.nsio~ to be expcmdsd aa
provided by this Srctioa and by szid Act of Conjrasa,
and any uncxpehded balance of funds appropriated ar either by the State of Tcxss or the r’cderal
allousted t.ioverf3l6ant to tk.3 ‘I’exsl3 ststo l3l;nIl1oymnt Servlcl 08 n division of the 3meau of &bor St3tlntlcs, 1s hareby, upon the passage of this Xot, transferred to the special tBaploym6nt Serviaa Account in the Unemployment Cm-
pensation Mmimlniatration F‘und. For quurpoae of’ es- tabllahiny and iastnteinlng free publ%c employment of-
fices, t’ce Cnmioaic~ is authorized to enter into acre+ LI0AtS with nng political of this State or sukii.vlslon vith any private, and/or non-profit or~znnlzation, and a8 a part of w such a~rocrxmt the Ctmleslon may ac- cept s~oniea, se~vicos, or quarters as a contribution
the special li&.ploymnt Servioe Account.‘”
Stmorablr C. 8. cbvnesa, page 4
It till be mm that the tvo mqloyek of the state Employment Service, here under oollrsldersticn, oocupled responsible positlone In the diacharze of vhS.ch they wore mqulred to exeroise to assist discretion and juWont, and, by statute, verb required en~loyees in obtaining employment. and to yist ac;ployers in ;~‘~~,enployees, Ln the opcmktion of a. free public enplo*ymont
The very name8 OS tho positions held by much employees lmlica~o that thoy vere, in a meanure, required to porfonn the Identical service, in their second mployment, which the statute r~qulred thm to perform for the State. For the perfo,msncs that ~e~vlc~ ther vere beinp; pald by the State, while at the same tlm they wore belnS paid for such eoDloymnt by a private conown.
The recor*d ~twm5 to indicate a fclthful discharge, by saah of said cnployeas, oi’ all the duties oved by thecl to the State as vell as to their private employer. The statement of hcta, houever, makes It apparent that
the two employxedte are lrmonsietsnt and lnconpatlble. such em- ploymont roqulred the employee to reprensnt the State es its agent on the one hcnd and the private employer, as his &Sent, on the other. The internsto of said two ~rl.xmip~~ls WOPG dlvopae, and l.n aany Instances wore probably confliating. Duo1 a,;ency, under such 01Pcllm tnnOt?B, lo contrmy to public policy and vi11 not be pemlt- ted. \Ja have heretoCope hold, ‘A our Op+inlan RTO. O-~2814, a
copy of vhich 1~ enclcjaed horevlth, la not that a State ezployes to receive pry for a vacstlon not taken vh1le he is LII entitled Is equally clear that an cnployee of the enploy of tho State. It the State voul.d not be entitled to receive pay for legal holidays occurpins after the twewance of his employment tith the State.
It seems that each of said employeoe be@n vork for a private employer abmt Deceuber 22, l$+O. It 1s our viav that vhea such enployeo cntomd upon his private employuent, won though he be- San such mploynent dorm a poriod dcnozln8ted the Chriatnas hln period of oocupatlon as a State employee van tern- R$:pdy5, Such employee MB entltlod to recofve pay from the State of T&J for all aorvlcos rendered by hln to tho State up to the date vhen he tomlnntod hia period of service vith the State by accept%nS enploymant vith the private concern. Xe vaa entltled to recelvo no further ofrm from the State, and the State vsa au- thorized to pay no further ewn on account of his mployxent until after the employee had been released by sold private errrploysr.
-. The actton of 8al.d employeer In acoeptlng employment OS . private employer ia repugnant to the idea of COAthWd employ- ment by the stite. It mqulred them to be iIi;BAtB of the Stnte on the one hand and of the private employer , OA the other, under cir- ~~stanaas vhere the lntormts of the two might easily be ln con- 3uch 8 contract tends to corruption end 1s ncainst pub110 fll.ct. ‘The tendency of nuch an agoement, and not the rooult
policy. or motive, 18 declnmd to be the test of it8 legnlity.” Am3rlll0 ofi Coqmny VB. Raoh creek Ollk Oarr Company, 271 S. U. 145, vrlt of error diemle8cd.
As said ln the c&se of Scott VS. K&o, 62 Clv, /,,pp. 163, 130 8. w. GlOt
“In all cases the princlp.yal is ontitled to the best effort and unbiased of his agent’, and judpent tho lav, ~CABOAB fcundod In public policy, Sor-
bide the agent’8 assumption oT a relation vhich as- temptations sntagotiatio to his duty.’
fords The rule-laid dOWA %A thQ CSBO Of Scott VU. lkho iB lav as betvsen prlvnto pwtleo. Certainly it should not be more relaxed In a c&se vhere tho stats la one of the princlpnla. That the agreczxnt here under oonaideratl.on io aczlnst the public policy OS thie state Is veil aettlod. City OS Edluburz vs. Elllo, (03~.
Of App.) 59 3. N. (2d) 39; !%iniken Vs. PO!:Bs, 15 Tex.~ 1208 Will&, VB, hbbey, 27 TQX. 203; DC&OA vs. h%lto, 9 Tex. 598. V:e same rule Is announced in Unltad Staten vs. Cwter, 217 3. 3. 286. The Follovlng pertinent quotrrtlon 1s taken Sxwm the Crrlifornla case Of Stockton Plmbing & Supply Company vs. wheelor, 229 P. 1020r
‘!I% prLnclpte upon which public officers am denied the right to make contracts in their ofSlcln1
capacity vlth thenoelves or to be or become lntexxt-
ed In contrxto thus made Is evolved from the salf-
evident truth, es trite and inpregwble 08 the lav of that no psrson cnn, at on0 and the swe graVit&tian, tine, falt&%llg Eerve two masters rcpreeont~ di- respect to the
VOPBO or inOOASiBtt3At iAtWaEtS Vith eorvico he performs. The prinoiple h%s nluape beon
one tho esfientia]. attributeS OS every rst5.0~1 BSB- ten OS poeltlvo l&v, even reaching to private ocntraoe-
ual tmnscotioas, vhoreby there are oreoted between
S.ndivldualo trusts or Siduolary relations. The voice
592 @nOrPbl@ C. H. Cavneq Pago 6 spaakiag from wlthLn the subllxmst ZA-
oS Clvlnlty, carnation ~AOVA to all hlistory, proclnlmed and em- the mixin! nearly two thousand peora ago OA . phasized oooationa of lnSlnlte 83m3dne8s.’
We 0On0bde that SincO it iB COAtl'Wy to the publlo p~llcy of this ztata thut lta ogento should, at the asrw U&e, ~pm86At IA the same C3pGOlty, Othdr p~h~ipals oS diverse in- the stated re38on thzkt no 6mn a&n serve two maatera, tsMst,s, vhcn eopiopnent vao accepted by such employees, aa agsuts of oontractons, thGy ae%w3 to be et~ployoae of the State OS Tes88, 6~d thnt such en$oyaor uere not entitled to recel?re any elzlary Srcnr the Stcrto OS Texa6 at any time aubsaquucat to the d3te of their accoptanoe of such ez;?loymmt , until they had acwsd to be m FEZ- ployed. hoaordln;;lp, VQ hold th3t such dusl engloymmt ~8~s high- ly mroper and that ft should never have Imen petitted, Aor should .%ny oomper?BaticA b5Ve been aaid to asid sl;ployees by the State, durbg my of the pall&n af tine shout vhlch you Inquire, if the f3ote were knovn disburoS.ng OffiC0l'B.
ATTO~ 0-m OF TEXA3 m3d&
Fowler Rbberts Assistant