The Attorney General of Texas
August 4, 1978
JOHN L. HILL
Attorney General
Honorable Lee H. Smith, President Opinion No. H-1223
Southwest Texas State University
San Marcos, Texas 78666 Re: Whether college president
may participate in university-
sponsored continuing education
program for a fee.
Dear Dr. Smith:
You ask whether the President of Southwest Texas State University may
accept a fee for participating in a university-sponsored continuing education
program.
The continuing education programs are funded by the persons attending
them through the payment of a registration fee. Occasionally, members of
the university’s faculty, staff, and administration are invited to speak at such
programs for a fee above the salary provided by contract with the university.
The Board of Regents, Texas State University System, has recently
promulgated an order authorizing employees of Southwest Texas State to
participate in continuing education programs for a fee, limiting the amount of
time that might be devoted to such activities, and requiring the approval of
the participant’s supervisor. University administrators must use vacation
time or adjust their working hours for the periods in which they engage in
these activities.
You ask whether the President’s receipt of a fee for participation in
certain seminars violates any of the following provisions:
1. The standards of conduct of State officers and
employees contained in section 8 of article 6252-9(b),
V.T.C.S.
2. Article V, S 1.q. of the current General
Appropriations Act.
3. Prohibitions against dual office holding found in
article 16, section 40 and article 6252-9a, V.T.C.S.
p. 4892
.
Honorable Lee H. Smith - Page 2 (H-1223)
Article 6252-9b declares the policy that no state officer shall have any
interest which is in substantial conflict with the proper discharge of his duties in
the public interest. Section 8 of article 6252-9b provides in part:
(a) No state officer or state employee should accept or
solicit any gift, favor, or service that might reasonably tend
to influence him in the discharge of his official duties or
that he knows or should know is being offered him with the
intent to influence his official conduct.
. . . .
(cl No state officer or state employee should, accept
other employment or compensation which could reasonably
be expected to impair his independence of judgment in the
performance of his official duties.
The President’s participation in continuing education seminars for compensation
raises the possibility that these sections will be violated. However, we cannot
determine as a matter of law whether or not this employment would violate section
8 of article 6252-9b. That is a fact question, which requires close scrutiny of the
circumstances of the employment. It is for the Regents to determine, in light of
the duties of the university president and the policy underlying article 6252-9b.
-See Attorney General Opinions H-696, H-688 (1975).
Article V, section 1.q. of the General Appropriations Act provides in part:
None of the funds appropriated to departments and
agencies covered in Articles I through IV of this Act shall be
expended for payment of salary to any person whose
individual line-item exempt salary is being supplemented
from other than appropriated funds until a report showing
the amount and sources of salary being paid from other
sources has been reported to the Secretary of State and
Comptroller of Public Accounts.
General Appropriations Act, Acts 19’77, 65th Leg., ch. 872, at 3141. The President
of Southwest Texas State receives an individual line item exempt salary and is thus
subject to this provision. & at 3086. See also Educ. Code 5s 51.002(a)(9), 51.006.
However, we do not believe that money received for participation in a
continuing education program constitutes a salary supplement. The Texas Supreme
Court has noted that “a salary is a fixed compensation for regular work.” Wichita
County v. Robinson, 276 S.W.2d 509, 513 (Tex. 1954). See also Kolcum v. Bs
Education of Woodbridge School Dist., 335 A.2d 618, 621(Del.uper. 19751 (salary is
P. 4893
Honorable Lee H. Smith - Page 3 (H-1223)
compensation for official or professional services or regular work)., We believe that
article V, section 1.q. of the appropriations act concerns the payment of extra
compensation for performing the regular duties of the position. See Attorney
General Opinion WW-376 (1958). It does not apply to the receipt of compensation
for services which constitute no part of employee’s duties. We understand from
your letter that the President of Southwest Texas State has no duty to participate
in continuing education seminars and would not usually take part in them. He
participates only at the request of persons organizing the seminar. Thus, any fees
received for such participation will not be subject to article V, section 1.q.
Article 16, section 40 of the Texas Constitution prohibits the holding of more
than one civil office of emolument at the same time. Article 6252-9a, V.T.C.S.,
concerns circumstances under which nonelective state officers may hold other
nonelective offices. See Attorney General Opinion H-5 (1973). We do not believe
the President’s particision in continuing education seminars would violate either
of these provisions. We have said that a university instructor does not hold a civil
office of emolument. Letter Advisory No. 137 (1977). The employment at issue
here is intermittent. See Letter Advisory No. 63 (1973). Even less than
employment as a universityinstructor can it be said to constitute a civil office of
emolument. Thus, without deciding whether the President already holds a civil
office of emolument, we can conclude that his work in continuing education
programs would not violate prohibitions against dual office holding.
Finally, we direct your attention to section 36.08 of the Penal Code, in order
that you may be alert to insure that none of its provisions regarding pecuniary
benefits to public servants are violated.
SUMMARY
The President of Southwest Texas State University is not
barred from participation in continuing education programs
for a fee by article V, section 1.q. of the General
Appropriations Act, article 16, section 40 of the Constitu-
tion, or article 6252-9a, V.T.C.S. Whether such partici-
pation would violate article 6252-9b, V.T.C.S., is a fact
question for the Regents to resolve.
P. 4894
Honorable Lee H. Smith - Page 4 (H-1223)
eED:
/
DAVID M. KENDALL, First Assistant
L&-&iL<~&man
Opinion Committee ’
p. 4895