The opinion
-’ ..-
Hon. S. .Perry Brown Opinion. No. WW-64
Chairman &I Executive Director
Texas Employment Commission Re: Whether or not the statutory
Austin, Texas language of Article 522lb-8(c) s
Vernon’s Civil Statutes, 14 broad
enough to authorize a member of
the faqulty of a State institution
of higher learning to serve on
the Advisory Council of the Texas
Dear Mr..B’rown: . Employment Commission.
You request the opinion of this office upon the question
presented in your letter of February 20, 1957, which is as follower
“‘Employment Service and Advisory Council:
The Commission is ZiiKiXeemo operate ‘P
employment service, but it is not necessary that
same be operated as a separate divialon of the
Commission. The’ Commission is also authorized
to appoint a State ‘Advisory Council composed of
persons Pepr’esenting employers, employees +nd the
public. Advisory Council members shall be allowed
and paid0 as a part of the cost of administering &is
Act and in accordance wSth regulations of the Com-
miesion, necessary travel and subsistence expenses,
in addition to a per diem allowance, in connection
with meetings of the Council$ buf they shall for no
purpose be iegarded as State employees. The
CommlssPon shall fix the composition and establish
the duties. of the State Advisory Council and may
take such action as it deems necessary ‘or suitable
to thlls end, The Commission may likewise appoink
and pay local advisory councils and consultanks
under the game conditions prescribed herein for the
State Advtaory Coudcil.” (Art, 522lb-8(c), V.C&)
“In view of the policy reflected by the sFlaMcs
dealing with the.State Youth &velopmeti Council
(Art, 5143c-4, V.C.S.) and the State Board of Trustees
of the R’etlrement Sys%em for State Employees (Ark.
6228a-6 A, V&A), your opinion is reques%ed ns to
whether the ststutory language quoted ls broad enough
to authorize a member of the faculty of a Stats insti-
tution of higher learnlng to serve on the Advisory
Hon. Perry Brown, ,page 2 (WW-64)
Council of the Texas Employment Commlsslon.
“If he is legally permitted so to serve, may he
be reimbursed for hls necessary travel and subsistence
expenses, if he is paid no per diem allowance in ad-
dition? n
Your request presents at once the fundamental question of
whether or not the occupancy of the positlon of a faculty member of
a Siate lnstltutlon of higher learning and of membership In the State
Advisory Council, provided for in Article 5221b-8(c), Vernon’s Civil
Statutes, is in anywise in violation of Section 33 or 40 of Artlcie ‘XVI
of the Constltutlok or otherwise illegal because of incompatlblllty of
the two positions.
Section 40 of Article XVI of the Constitution forbids any
person to hold or exercise at the same tlme more than one “civil
office of emolument* with certain exceptions with which we are not
here concerned.
The position of a faculty member of a State institution of
higher learning 1s not a’ civil offlce.~ Such a faculty member is ‘an
employee of the State but not a civil officer. even though his posltion
1s bne of emolument.
Section 33 of Article XVI,of the Constitution is more
restrictive than Section 40 of Article XVI of the Constitution and
Section 33 is the one with which we are here more directly concerned.
It provides as follows:
-The Accounting Officers of this State shall nrKther
draw nor pay a warrant upon the Treasury in favor of
any parson, for salary or compensation as 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 thls Constitu-
tion. . ..”
This section extends the disqualification of a person beyond
the mere exercise of a clvll office of emolument. It includes the hold-
lng of any other ‘positton of honor. trust or profit” under this State
or the United States, except as prescribed in the Constitution.
The question recurs then whether or not the position of a
faculty member of a State-supported institution of higher learning 1s
a ‘position of honor, trust or profltm under this State. Such a facul,ty
member does hold a ‘position of honor, trust or profit”, and furkher-
more such a faculty member holds such a position “under this State*.
This 1s not altered by the’ fact that the employment 1s not directly by
the Stats but through Boards of Regents or Dfrectors who have
Hon. Perry Brown, page 3 (WW-64)
control over such institutions. Such institutions are nonetheless
agencies of the State.
We also hold that a member of the Advisory Council of
the Texa,s Employment Commission likewise holds a position of
“honor, trust or profit” under this State.
It is therefore the opinion of this office that Section 33
of Article XVI of the Constitution forbids a member of the faculty of
a State institution of higher Learning from receiving any compensation
whatsoever from State- funds, whether it be classified as per diem or
straight salary or travel and subsistence expense or allowance for
services rendered as a member of the advisory Council of the Texas
Employment Commlsslon. Even though only travel and subsistence
expense or allowance be paid to the Advisory Council member, it is
still a form of compepsatlon for the services rendered, paid by the
Comptroller’s warrant upon the State Treasury.
Out of ,precautiop, we should also advise you that the con-
verse of the statement made in the preceding paragraph would be
applicable to the salary paid to the faculty member of a State lnstitu-
tlon of higher learning. In brief, he would disqualify himself !f he
should accept the position ads a member of the Advisory Council of
the Texas Employment Commission from also recelvlng his salary
from the State institutlon of higher learning.
We have not overlooked the provision in this Act to the
effect “but they shall for no purpose be regarded as State employees”.
This legislatlve declaration cannot be given effect to classify the
members of the State Advisory Council as non-State employees when
the actual facts are to the contrary.
Neither have we overlooked your reference to other
statutes dealing with the Youth Development Council and the State
Board of Trustees of the Retirement System of State employees. The
Constitution does not forbid the Legislature from adding ex offlclo
duties to officers of the State, constitutional or statutory, for which
,. they receive no additional compensation. Their official status is in no
manner changed by the;addltion of such ex offlclo duties.
We believe jthe foregolng answers the speclflc question
which you ask, but in support of our opinion reference is made to an
opinion by the Flrst Assistant Attorney General Cureton, later Chief
J.usttce of the Supreme Court, in which he held:
“It is very; clear, therefore, that Mr. Mayes, so
long as he ,ls Lieutenant-Governor, could not under the
Constitution draw pay from the State, as (1) agent,
(2) officer,,i(3) appointee of the State.
i Hon. Perry Brown, page 4 (WW-64)
-As we have above endeavored to show that a
professor in the University of Texas is an appointee,
or in a limited sense an agent, therefore, 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. ,Mayts, so long as 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 posi-
tion 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 or such position.n (Opinions,
Book 30, p. 394)
SUMMARY.
A faculty member of a State educational
institutfon of higher learning is a State,
employee’ holding a, position f honor, trust
or profit under this State anI a member of’
the Advisory Counctl of the Texas Employ-
ment Commission ts also holding a pwitdon
of honor, trust or profit under tb.ls Stdtc,
The same person may not, consistent with, I.
Section 33 of Article XVI of the Constitution,
hold both positions at the same tima and
rece,ive compensation from State funds.for ..’
either.
i
Yours very truly,,
WILL WILSON ”
Attorney General
LPL:cs
APPROVED: ,‘I:
OPINION COMMITTEE ~,,’
H. Grady Chandler, Chairman.