The opinion
_.
THE ATI?ORNTEY GENERAL
OF’ TEXAS
Hon. Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir: Opinion No. O-1101
Re: Legality of expense account attached.
Can the Board of Dental Examiners
employ one of its members as Secre-
tary of the Board and pay him a sal-
ary out of the General Registration
Fund?
Your request for an opinion on the questions as are herein
stated has been received by this office.
Your letter reads in part as follows%
"I am enclosing an expense account of Dr. Carl Holder, Secretary,
Texas State Board of Dental Examiners, and request your opinion
as to whether this'account can be legally paid from the funds
appropriated to the State Board of Dental Examiners.
"In this connection I will thank you to advise whether the Board
of Dental Examiners may employ one of its members as Secretary
of the Board and pay him a salary out of the General Registration
Fund."
Article 4543, Revised Civil Statutes, reads in part as follows:
1,
...Before entering upon the duties of his office, each member
of the Board shall take the constitutional oath of office,
same to be filed with the Secretary of State. At its
first meeting the Board shall organize by electing one
member President and one Secretary, chosen to serve one
year...."
Article 4543, -supra, provides for the appointment and sets out
the qualifications of the State Board of Dental Examiners.
The last paragraph of-Article 4550a reads as follows:
"To aid the Board in performing the duties prescribed in
this section, the Board is hereby authorized to employ a
-- ^
secretary, who shall receive a salarg to be fixed by the
Board, and he shall make and file a surety bond in a sum of
not less than Five Thousand ($5,000.00) Dollars, conditioned
for the faithful performance of all the duties of his
office and the safekeeping and proper disbursement of said
Dental Registration Fund and all other funds coming into
his hands; such salary shall be paid out of said Dental
Registration Fund and shall not be in any way a Charge upon
the general revenue of the State. Said Board shall employ
and provide suoh olerks and employees as may.be.needed to
assist the secretary in performing his duties in carrying
out the purposes of this Act, provided, that their compen-
sation shall be paid only out of the said Dental Registration
Fund. All disbursements from said Dental Registration Fund
shall be made only upon the written approval of the President
and Secretary of Said Board and upon warrants drawn by the
Comptroller to be paid out of said Fund."
Section 33 of Article 16 of the State Constitution reads as
followsr
"The accounting officers of this State shall neither draw
nor pay a warrant upon the Treasury in favor of any per-
son, 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 this Constitution.
Provided, that this restriction as to the drawing and
paging of warrants upon the Treasury shall not apply to
officers of the National Guard of Texas, the National Guard
Reserve, the Officers Reserve Corps of the United Sts!tes,
nor to enlisted men of the National Guard, the National
Guard Reserve, and the organized reserves of the United
States, nor to retired of'fLoers of the United States
Army, Navy, and Marine Corps, and retired warrant officers
and retired enlisted men of the United States Army, Navy
and Marine Corps."
Under the provisions of Article 4550a, supra, the State Board
of Dental Examiners is authorized to employ a secretary who
shall receive a salary to be fixed by the Board to aid the
Board in performing the duties prescribed by law.
Artiole 4551 provi.ded that:
"Each member oft the State Board of Dental Examiners shall
receive for his services Ten($?.O.OO) Dollars per day for
each dag he is actually engaged in the duties of his office,
together with all legitimate expenses incurred in the
performance of such duties. All per diem and expenses
accruing hereunder shall be paid from moneys received by
said Board from applicants for examination and from the
Dental Registration Fund as provided in this law; no money
shall e~ver be paid to any member of the Board from the
General Fund."
(O-1101)
Hon. Geo. H. Sheppard, Page 3 , O-1101
The members of the State Board of Dental Examiners hold an
office and Position of honor and profit under the State laws,
and Article 16, Section 33 of the State Constitution, above
quoted, prohibits the aooountlng offioers of the State.from
drawing or Paying warrants from the Treasury in favor of any
person for salary or compensation as agent, officer or appointee
who holds at the same time any other office ore osition of honor,
tates, except
trust or profit, under the State or the United !i
as prescribed in the Constitution.
On September 22, 1913, this department held in a lengthy con-
ference opinion, written by Ron. C. M. Cureton, First Assistant
Attorney General, and Ron. C. W. Taylor, Assistant Attorney
General, addressed to the Board of Regents of the University of
Texas, that should Mr. Ways accept the position 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.
We quote from the above mentioned opinion as follows:
"AI-I
analysis of the above quoted section of the Constitution
(referring to Section 33 of Article 16) results in the
following: That theaccounting officers of this State
are prohibitedf rom drawing or paying a warrant upon the
treasury in favor of any person for (a) salary, (b) com-
pensation; as (1) agent, (2) offioer, (3) appointee, if
such person at the same time holds any other (1) office,
(2) position of honor, (3) position of trust, or (4)
position of profit, under this State or the United States.
"Mr. i&ayes is the Lieutenant-Governor of this State, and
under the Constitution as above quoted and discussed that
is an office. It is likewise 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
is a compensation attached to the office of Lieutenant-
Governor, which, be it great or small, is intended as a
remuneration for time devoted to the office.
f!It is very clear, therefore, that Mr. Mayes, so long as
he is Lieutenant-Governor, could not under the Constitu-
tion draw pay from the State as (l)agent, (2) offleer,
(3) appointee of the State."
On April 1, 1932, this department held in an opinion written by
Hon. Scott Gaines, Assistant Attorney General, addressed to
Mr. L. W. Rogers, First Assistant State Superintendent, that
a member of the faculty of the State Institution of higher learn-
ing cannot legally draw a salary from,the State Government and
at the ssme time serve asa school district trustee.
Hon. Gee. H. Sheppard, Page 4 , G-1101
On September 10, 1937, this department held in an opinionwritten
by H. L. Willlford, Assistant Attorney General, addressed to
Hon. Jams V. Allred, Governor, in oonstrueing Senate Bill No,
74, Acts of the Forty-Fifth Legislature, creating State Board
of Registration for Professional Engineers and holding that
members of the faculties of Texas University, Texas Tech and
the State A & M College are ineligible for appointment on said
force by reason of Article 16, Section 33 of the State Consti-
tution. This opinion also cites Article 16, Section 40 of the
Constitution of Texas, which provides that no personshall
hold or exercise at the same time, more than one civil office of
emolument, except that of Justice of the Peace, County Com-
missioner, Notary Public and Post Master, etc.
On September 23, 1937, this department held in an opinion
written b;- Hon. Scott Gaines, First Assistant Attorney
General, addressed to R. L. Bobbitt, Chairman of the State High-
way Commission, that under provisions of Seotion 33 of Article
16 of the Constitution a warrant cannot be drawn upon the treas-
ury in favor of any agent, officer or appointee or a salary or
a compensation as such, who, at the same time holds any other
office or position of honor, trust or profit under this State
or the United States, except certain exceptions therein stated.
In view of the foregoing authorities, you are respectfully
advised that it is the opinion of this department that the
State Board of Dental Examiners cannot legally employ one of
its members as secretary toaid the Board in performing the
duties prescribed by law as provided by Article 4550a, supra,
and pay him a salary out of the general Registration Fund.
You are further advised that a member of the State Board of
Dental Examiners, who, at the same time, holds and exercises
the duties of secretary to the board aw provided by Article
4550a, supras cannot draw pay foreither such office or such
position s oblong as he continues to hold the position as
secretary to the State Board of Dental Examiners as provided
by Article 4550a, supra, and remains a member of the Stats
Board of Dental Examiners.
Trusting that the foregoing answers your inquiry, We remah
Yours very truly
Attorney General of Texas
BY
:Zell Williams
Assistant
AW:OB
PPRGVED July 31, 1939 APPROVED
b IRST ASSISTANT ATTORNEY GENERAL Opinion Committee
By R. W. F.--chairman
.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Artlolo 4Sbbl prooldeo that oeoh saber or
t& Stat0 Boar4 0r DentaliExaminare shall roooirer0r
hla aerolaaa $10.00par day ror eaah day he ia sotire-
4 r Dsa ld..~.~,.Quk iea ..o L,,~,o rdth r la a ..~a Lb r
a11 lag3 tlrrt8'6xp6aoeo in~urmd ia tho porforaaaaa
o? suoh dutlea.
hrtiale455Oa authorizesthe Stat6 Board of
DentalExnmla6ra to omploy a aearetaxy,to aid th6 Board
ln porSomSag ~+ha:6~4lo@..p~~oribe6 b7 law, ad. the raly
of rruoh aeant6Ty rhrll k tlud~ by the Boar+&, ati mob
rsarefa~ ahall nab and fllo a auroty boa4 ln th a lm
oi 13Ot..;kU .thO&&,~o,~ .ditblL6h;iW:bb~%6ibhfUi
parrormanoo of &ll fhs a&" of hlr oifloo in tho MiO-
keeping and propor Qlaburaawnta oi the Dantal,Reglatratlon
Fund and ell other fun48 aomlng into hi6 hands.
sootloa3 0r Alrtlols a71a provld*athat:
*A Stata Board of Ragl~tratioaror Pro-
rasslonrlRa&mera oreatod whore
is her'8by
autx..itsbrU by t9 .a$alaiat6r thcpmykloar
or Chin A&t;*
Seotloa S or Art1010 3371~1
provid6sthat 88oh
Seotloa0 0r Article3S7la protides the tha
Seoretaryot the Board #hall mosl~o a aalar se the Board
ahall 4ete& Ion an4 SX-
In addltlonto the oosaperuat
p6nses provldad for in the Aat.
Regarding tha State Roar4 of Reglatretionfor
z+roroeaional 2znglatber0, lt ir mfmltestthat one nnabar 0r
theiRoar4 has the dutiu of learetary of g\toh Borrrd ox
orriiaio,~ma the k19.t aret~.tho Ramd *i Ro&a4ro4lon,
above rer6rre4 to; prorid rOr a per Ulem oompaaation
ror muoh 8srb0r, ror uo rxpouo or au08 wmb6r, ud to+
the ralarpof,su.o&~~~r, r&I o$ whlob,$ rar~ecapotui~
for’ tlie Lagl8latum $a pr6aorlb6 and mu0 3 .
The lte$utea 40 not providethat the Seorstary
of the State Eoer4 0r Dentel 3mmlnere shell reoelreany
salary in additionto his per diem OOmp0AsatiOn, 9~hileon
the'other head, the a.tatuteado.provldethat the Seorstary