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Honorable Byron Tunnel1
Speaker ‘.
House of Representatives
Austin, Texan
Re: Compensation of a Member
of the House of Repreeent-
atlves who Is also employed
Dear Mr. Tunnell: by the Toledo Bend ProJect.
Your request for an opinion reads ae followe:
“I request that you advise me whether
or hot I can legally authorize expenditure6
of monies to and for a member of the Houae of
Representatives under the facts eet out.
“The Honorable Sam F. Colllne ‘of Newton,
Texas, Representative, Dletrlct 7, conelstl~
of Jasper, Newton, Tyler cind Sabine Counties,
was employed by the Toledo Bend Project effec-
tive day 31, 1963. At that time, In an abun-
dance of caution, Repreeentatlve Collins request-
ed that he be taken off the monthly House of
Representative8 Member’s payroll and since which
time he has not’ received his monthly compensation.
.
“I reiuest that you advlee me:
“1 . Doea Representative Coll#iet employment
preclude him from receiving the Coneti-
tutlonal salary of ‘a member of the House,
of Rtpresentativee?
“2. If your.anew& to &eetlon no. 1 is In
the negative; can Representative‘ Collins
now be paid for the montha he haa not re-
ceived such’ealary and if 80; .can he be
p&Id In a lump sum?
"3. If your answer to que.stion’ no. 1 ie In
the arflrmatlve, does Representative
..
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Hon. E!yron Tunnell, page 2 (C221)
Colllne~.employment preclude him from
using Houee Contingent Expense funds
during the ‘Interim?
“4. Representative Collins Is also a mem-
ber of the Texas Leglelatlve Council.
Ii your anewer to quaetlon no.’ 1 ia In
the affirmative, can Repreeentatlve
Colllne be relmbure,ed within the Statu-
torypmount for expeneee’ Incurred in
cons&tlon with hi8 Councll~actlvltlee?”
Representative Colllne was employed a8 a Project Super-
visor and hle dutiee conslet o? the gqneral eupervlelon of the
Toledo Bend Project. .The Toledo Bend Project Is a joint effort
of the Sablne Rlver Authority of Texae and the Sablne River Au-
thority, State of Loulelanar~ for the building and operation of
a damand reeervolr project on the Sablne~ River at Toledo Bend.
This joint effort’ie pursuant to an agreement entered Into by the
Sablne River Authority of Texas and the Sablne River Authority,
State-of Louisiana on the 6th day of July, 1961, and supplemental
agreement entered Into on the 5th day of April, 1962. The Sablne
River Authority of Texas le “a governmental agency o’f the State of
Texas, a body politic and corporate, vested with all authority as
such under the C.onetltutlon and.lawe of the State” created by the
provlelone of Article 8280-133, Vernon18 Civil Statutes. Therefore,
under the facts eubmltted~by you , Representative Collins Is an em-
‘ployee of an agency of the State.
Section 40 OS Article XVI of the Conetltutlon of Texas pro-
vides:
“No person shall hold or exercise, at the same
time, more than one Civil Office of emolument, ex-
cept . . .‘I (Exceptions not applicable).
Sectlon 33 of~'Artfcle XVI'o‘r the Coi&t’~tikldn’ O? Texas pro-
vides:
“The Accounting Officers of this State shall
neither draw nor pay a warrant upon the”Treasury in
favdr of any p&eon for salary or compensation as
agent, officer or appointee , who holds at the same
tlmi any other office or position or honor’, tNst
or profit, under this. State of the United States,
except as prescribed in this Constitution. :. . .I’
(Exceptlone not applicable).
In Attorney @eneralle Opinion V-308’(1947), It was held that
although a Member of the Leglslature’may accept employment’ae
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Hon. &von Bunnell, page 3 (C-221)
Executive Secretary of the Board of Regents of the Texas State
Teachers Colleges, the Comptroller,would not be atithorlzed to
Issue a warrant In payment of compe~eatlon. In discussing the
dlfference.between an officer and an employee, it was pointed *
out In this opinion:
11 . . . An !offlcer’ exercises some govern-
me,ntal funct&n; he la Snveeted with some pbrtlon
of the sovereignty. A public office Is a right, au-
thority and duty created and conferred by law, the
tenure of which Is not transient, occasional, or ln-
cldental. Among the usual criteria given for deter-
mining whether an employment Is a publlc office or not,
are’the requirements of an offlclal oath and bond;
that the powers are granted and conferred by law and
not by‘ contract. The ‘officer’ Is -generally answer-
able for misfeasance In office,, and Is responsible for
the acts of his ‘employees.’ Eimployment, on the other
hand, Is established-by contract. It Involved per-
forming such duties as are prescribed by .the employ-
ing agent. The ‘employee’ Is often subject to dls-
charge at the will of the ‘offleer’ to whom he Is
reeDonsible. These matters are full-v discussed In
Loard v.w,
-~ 137 S.W. (2cl.880, w&t refused; Knox
~S$.ii41 S.W. (2d) 698 , writ refused; Meek,
?icere, Ch. i; 42 Am.Jur.,Fubllc~Offlcere, Sec-
tlons 2-16: 14 Tex.Jur.. kQbllc Of'flcers. Sections 2-
4; and In Gotatlons 53 A.L.R. 595, 93 A.L.R. 333.
140 A.L.R. 1076."
In Attorney Oeneral’e Opinion R-972 (1947), it was held that
a legislator could not receive pay as a’Member of the Legislature
If such person was the executive secretary of a county retirement
system, holding that, while such position does not constitute an
Office within the meaning of Section 40 of Article XVI of the Con-
stitution of Texas, such position Is one of,honor, trust or profit
under this State, within the meaning of Section 33 of Article XVI
of the Constitution of Texas. A similar conclusion was reached .ln
Attorney Oeneralte Opinion O-6578 (1945) lhvolvlng membershlp In
the House of Represenatlves and at the same time, employment with a
River Authority. Therefore, It Is our opinion that under the facts
eubmltted in your request, Repreeentatlve Colllne~ position with
the Toledo Bend Project Is not an office within the meaning of Sec-
tion 40 of Artltile'i(VI of the Constitution of Texas; rather, his
position is that of an employee.
While such poeltlon does not constitute an office, It IS
one of honor, trust or profit under this State. The position
carries with It em~lumenteof employment. !lhe Toledo Rend Prod-
ect calls for an expenditure of large sums of public monies.
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Hon. Byron Tunnell, p&e 4 (C-221)
. i You are therefore advised that; uhder the faote bubmlt-
ted, -RepFeeentative’ Colli’rib’ employment preoluiltij him, ~whlle
so emfilioged, Trti receiving his salary as a Member of the House
o? Repreeentativi%3.
In vlen sf.our’anewer to’gotir question no. 1, It Is not
necessary to answer, question no. 2.
” In answer to question no. ,3; it. ta’ not&d that.Sdction 33
of ArtioU ‘XvIjof ,the Constitution of Texas is etrlotl~ limited
to a’warrkht Upon the Treasury in favor of.any peraon ‘for sale;-
ry br’oimp&ieatlon as agent, offloer.or appointee” And therefore
doe¬ apply to~the’laeuanoe~of warranter for the payment of ex-
penses to which such person would otherwise be ent1tU.d.. mere-
fore, .you-.&re advised that ,Representatlve Collins’ einployment
dde’e~liot preclude he from using House contingent expense funds
during the Interin:
In answer to your fourth question, you are likewise advie-
ed that Representative Collins may be reimbursed within the atatw-
tOry amount for expense8 Incurred In connection with his actlvl-
ties as a member of the Texas Legislative Council.
SUMMARY
Although a Member of the Legislature la ell lble
to accept an employment (Project Supervisor 7 on the
Toledo Bend Project, a joint effort of the Sablne
River Authority of Texas and the Sablne River Au-
’ thoritg, &ate of.Loulslana, he Is not eligible,
while 40 employed, to receive his salary as a Member
of the Legislature, In view of the provisions of
Sedtlon 33 of Article XVI of~the Conatltutlon of
Teliaa . Such prohibition, however, does not pre-
clude.hlm from receiving reimbursementfor expenses
as a Member of the Legislature or as a member of
the Texas LegleZatlve Council.
Yours very truly,
WAQGORER CARR
Attorney General
John Reeves~
JR:ms
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Hon. Byron Bunnell,page 5 (C-221)
APPROVED;
OPINIONCoMMI'ITgE
W. V. QepPert,Chalrmfq
Lloyd -in
J. S. Bra&ewe11
HaloolmL. Qlok
APPROVgDFaRkATX4U4EYOBtlBRAL
BYi HowardW. Maps
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