Untitled Texas Attorney General Opinion

. THE .~TTOKBTEY GESERAZ. OF %%XAS Honorable John Lawhon Opinion No. M-297 County Attorney Denton County Re: May a county attorney serve Denton, Texas as a college professor at a state university under the provisions of Sections 33 and 40 of Article XVI, Texas .~ Constitution, and related Dear Mr. Lawhon: statutes. You have recently requested an opinion from this office regarding the above stated matter, we quote from your letter as follows: "QUESTION "Can the County Attorney of Denton County serve as professor for one class at a state university? "BRIEF ON THE LAW "A new case, Tllley v. Rogers, 405 S.W.2d 220, 224 (Tex.CIv.App. 1966,wr.ref.,n.r.e.), directly answers this question. There is no later case In olnt. The Tilley case construes Art. 1.6, Sec.fl0 of the Texas Constitution, which article restricts a person from serving In more than one civil office of emolument. "The office of County Attorney Is such a civil office; 'however, a professorship Is not an office. A teacher or college professor is not an office within the meaning of the constl- tutlonal provlslons of Art. lb, S . 40 of the Constitution of the State of Texa? He Is an employee and the prohibition of the constitu- -1433- Honorable John Lawhon, page 2 (M-297) tional provision of Art. 16, Sec. 40 is in R 405 s s%-F*’ 224 T(~ex’“cI:::Ap~pef~~6~“~~“XS.,n. l1 “CONCLUSION “The answer to this question Is that such County Attorney can legally serve a8 profeaeor for a class at a state university.” Section 40 of Article XVI, Vernon’s Texas Constl- tution, la quoted in part a8 follows: “No person shall hold or exercise, at the same time, more than one civil office of emolu- ment. . . .‘I (ephasisam We have reviewed the case of Tllley v. S.W.2d 220 (Tex.CIv.App. 1966, err.reS.n.r.e.), your analysis of that case. You are also referred to Attorney General Opinion V-689 (1948) which makes It clear that it has long been the position of the Attorney Qeneral that a college pro- fessor does not hold “a civil office of emolument.” The court in the Tllley case, suora, was concerned on1 with the hold- ing of more than one !‘oSS Ice” undersection -3 0 of Article XVI. However, your question also necessitates an analysis of Section 33 of Article XVI, Vernon’s Texas Constitution, which Is quoted, In part, as Scillowa: “The accounting officers of this State shall neither draw nor pay a warrant upon 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 or position OS honor, trust, or profit under ‘this Statel except as prescribed in this Constltutlbn. . . . Without question, a county ‘attorney holds an “office .of honor, trust or profit under this State.” Article 329 Vernon’s Civil Statutes; Attorney Ueneral Opinion No. - 1,,434 - Honorable John Lawhon, page 3 (M-297) Likewise, this office has held many times previously that a college professor of a state college holds a position of honor, trust, or profit under this State, In Attorney General Opinions Nos. C-527 (1965) and c-528 (1965), it was held that there was no material legal distinction between "office of honor or trust" or "position of honor or trust." However, there Is a material distinction between "office of profit" and "position of profit." While the former term means that the holder exercises sovereign governmental Sunc- tlons, the latter term differs in that Its duties are not necessarily so characterized and embraces both officers and employees. A teacher holds a "position" of profit. 33 words and Phrases 53, 55, "Position", and 1968 Pocket Part, pp g-11, and cases there cited. See Attorney General Opinion V-689 (1948), and the many prior opinions cited therein, that a school teacher falls wlthln the prohibited term, "position of honor, trust, or profit." Therefore, a county attorney who Is also teaching at a state supported college would be holding two positions OS honor, trust or profit and thus 1s subject to the constltu- tlonal provisions of Section 33, Article XVI. Consequently, the State Comptroller would be pro- hibited In paying the salary or compensation of an Individual who Is presently a county attorney and also a professor at a state college or university. However, the County Attorney Is not prohibited from serving as a professor In the state col- lege without compensation, and he may also draw compensation out of funds, the sources of which are not from the State Treasury reaulrlna the accountlna officers of this Stat'e to draw or-pa -a warFant See Attorney General Opinion Numbers V-689 (I&) and also-see C-547 (1965). The people, during 1967, saw fit to amend Section 33 of Article XVI so as to provide that a non-elective state officer or employee may hold other positions of honor, trust or profit under this State or the United States under certain specified conditions, but elected officers or position holders are still subject to the prohibitions discussed herein. See Attorney General Opinion No. M-193 (1968). - 1435 - Honorable John Lawhon, page 4 (M-297) SUMMARY A college professor at a state university Is not a civil office of emolument under Section 40 of Article XVI, Constitution of Texas. v. Rogers, 405 S.W.2d 220 (Tex.CIv.App. 19 reS.n.r.e.) and the County Attorney may serve as a college professor of a state college, but without compensation from the State Treasury. The State Comptroller is prohibited by Section 33 of Article XVI, Vernon's Texas Constitution, from paying the salary or compensation of a college professor who Is also a county attorney. truly yours, Prepared by James C. McCoy Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman Bill Corbusler Pat Bailey Arthur Sandlln Robert Flowers A. J. CARUBBI, JR. Executive Assistant -1436-