The Attorney General of Texas
August 13, 1981
MARK WHITE
Attorney General
Mr. Paul Dean Aikin Opinion No. MW-360
Colonel, Selective Service System
Texas State Director Re: Whether ,electedofficials
P.O. Box 5218 of the State of Texas, or any
Austin, Texas 78763 of its counties or cities, are
prohibited from serving as
Local Selective Service Board
Members
Dear Mr. Aikin:
You have requested our opinion as to whether elected state,
county and city officials may serve as local board members of the
Selective Service System. The federal government recently
re-established such boards and placed them in stand-by status, in the
event a military draft is again imposed. You ask whether elected
state and local officials may be appointed to fill the approximately
690.positions on local boards in Texas.
Article 16, section 12 of the Texas Constitution provides:
No member of Congress, nor person holding or
exercising any office of profit or trust, under
the United States, or either of them, or under any
foreign power, shall be eligible as a member of
the Legislature, or hold or exercise any office of
profit or trust under this State.
III 1967. article 16. section 33, which theretofore had included
prohibitions similar to those of article 16, section 12, was amended,
in part, by adding the following:
It is further provided...if authorized by the
Legislature by general law under such restrictions
and limitations as the Legislature may prescribe,
that a non-elective State officer or employee may
hold other non-elective offices or positions of
honor, txst, ST profit under this State or the
United States, if the other offices or positions
are of jeneflr. to the state cf Tzsas or are
required by State or federal law, and there is no
Paul Dean Alkin - Page 2 (MW-360)
conflict with the original office or pcsftion for
which he receives salary or compensation.
Attorney General Opinion M-193 (1968) held that this language served
lmpliedly to amend article 16. section 12, by creating an exception
tar non-elective state officers in certain circumstances. In 1969.
the Legislature implemented these provisions by adopting article
6252-9a, V.T.C.S. See also Attorney General Opinion M-997 (1971). In
1972, the exception was, without significant change of language,
removed from article 16, section 33, and inserted in article 16,
section 40. Although it continues to furnish an exception to article
16, section 12, it is not applicable to the present inquiry concerning
elected officials; the full prohibition of article lb, section 12,
remains in effect for such,individuals.
The question is thus whether a member of a local draft board
holds an "office or profit or trust under the United States."
Although local board members may be reimbursed for travel expenses,
the position is declared by federal regulation to be "uncompensated."
32 C.F.R. 91603.3. Furthermore, the position is created by federal
law, and board members are appointed by the President. 50 U.S.C.
5460. Thus, the position is not "one of profit," but it is held
"under the United States." Accordingly, we need determine only
whether local board membership constitutes an "office of trust."
A number of earlier Attorney General opinions have held that
positlons.which are essentially advisory are not offices of honor or
trust for purposes of article 16, section 12. See, e.g., Attorney
General Opinions O-5341 (president of local chapter of American Red
Cross); o-5314 (1943) (advisory board for selective service
registrants); O-4313 (1942) (Alien Enemy Hearing Board is merely a
fact finding and advisory body, which neither makes nor enforces
decisions). On the other hand, certain positions require an exercise
of a portion of the tederal sovereignty, and thus should be deemed
offices of honor or trust. See, e.g., Attorney General Opinions
O-5232, O-5107 (1943) (public member of the Regional War Labor Board);
O-2226, O-2226-A (1940) (member of local community committee of the
Agricultural Adjustment Administration).
In Attorney General Opinion WW-201 (1957), this office said that
a nember of a joint board appointed by the federal Interstate Commerce
Commission held an office of honor or trust under the United States
and, as such, could not simultaneously be paid as an employee of the
Railroad Commission. That opinion was specifically overruled in
Attorney General Opinion C-527 (1965), which noted that service
performed on a joint board involved "research, advice and
reccxendaticrs for crders to be officially promulgated and enforced
by t:12ICC." ?ecision niking and enforcement of orders were retained
by :he Ccm',ssion. In sue circunstanc~s, ths opinicn held that a
ne!ker 0. a j\;int board had not been dslegztzt any portion of the
federai scveriignty, and thus, could not reason&I:~ be said to occupy
21 cffLce cr xeition of honor or trust under t>e IJnitedStates. The
Paul Dean Alkin - Page 3 (MU-360)
opinion emphasized that there was little legal distinction between
"otfice under the United States" and "office or position of honor or
trust." The key. for purposes of article 16, section 12, was whether
the individual had been delegated "some of the sovereign functions of
the United States Government."
We believe it is clear that members of local draft boards have
been delegated a portion of the federal sovereignty. 50 U.S.C.
1460(b)(3) provides, in pertinent part:
Such local boards, or separate panels thereof each
consisting of three or more members, shall, under
rules and regulations prescribed by the President,
have the power within the respective jurisdictions
of such local boards to hear and determine,
subject to the right of appeal to the appeal
boards herein authorized, all questions or claims
with respect to inclusion for, or exemption or
deferment tram, training and service under this
title, of all individuals within the jurisdiction
of such local boards. The decisions ot such local
board shall be final, except where an appeal is
authorized and is taken in accordance with such
rules and regulations as the President may
prescribe. (Emphasis added.)
By the clear language of this statute, it is apparent that members of
local draft boards have been delegated w~~me of the sovereign
functions of the United States Government," and therefore, occupy
offices of trust under the United States. See also Attorney General
Opinion O-5550 (1943). Accordingly, elected~~ state, county and city
officials are prohibited by article 16, section 12 of the Texas
Constitution from serving as local board members of the Selective
Service System.
SUMMARY
Elected state, county and city officials are
prohibited by article 16, section 12 of the Texas
Constitution from serving as local board members
of the Selective Service System.
Paul Dean hikin - Page 4 04W-360)
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
ASSiStant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Aible
Rick Gilpin
Jim Moellinger
P. 1207