Untitled Texas Attorney General Opinion

-’ ..- Hon. S. .Perry Brown Opinion. No. WW-64 Chairman &I Executive Director Texas Employment Commission Re: Whether or not the statutory Austin, Texas language of Article 522lb-8(c) s Vernon’s Civil Statutes, 14 broad enough to authorize a member of the faqulty of a State institution of higher learning to serve on the Advisory Council of the Texas Dear Mr..B’rown: . Employment Commission. You request the opinion of this office upon the question presented in your letter of February 20, 1957, which is as follower “‘Employment Service and Advisory Council: The Commission is ZiiKiXeemo operate ‘P employment service, but it is not necessary that same be operated as a separate divialon of the Commission. The’ Commission is also authorized to appoint a State ‘Advisory Council composed of persons Pepr’esenting employers, employees +nd the public. Advisory Council members shall be allowed and paid0 as a part of the cost of administering &is Act and in accordance wSth regulations of the Com- miesion, necessary travel and subsistence expenses, in addition to a per diem allowance, in connection with meetings of the Council$ buf they shall for no purpose be iegarded as State employees. The CommlssPon shall fix the composition and establish the duties. of the State Advisory Council and may take such action as it deems necessary ‘or suitable to thlls end, The Commission may likewise appoink and pay local advisory councils and consultanks under the game conditions prescribed herein for the State Advtaory Coudcil.” (Art, 522lb-8(c), V.C&) “In view of the policy reflected by the sFlaMcs dealing with the.State Youth &velopmeti Council (Art, 5143c-4, V.C.S.) and the State Board of Trustees of the R’etlrement Sys%em for State Employees (Ark. 6228a-6 A, V&A), your opinion is reques%ed ns to whether the ststutory language quoted ls broad enough to authorize a member of the faculty of a Stats insti- tution of higher learnlng to serve on the Advisory Hon. Perry Brown, ,page 2 (WW-64) Council of the Texas Employment Commlsslon. “If he is legally permitted so to serve, may he be reimbursed for hls necessary travel and subsistence expenses, if he is paid no per diem allowance in ad- dition? n Your request presents at once the fundamental question of whether or not the occupancy of the positlon of a faculty member of a Siate lnstltutlon of higher learning and of membership In the State Advisory Council, provided for in Article 5221b-8(c), Vernon’s Civil Statutes, is in anywise in violation of Section 33 or 40 of Artlcie ‘XVI of the Constltutlok or otherwise illegal because of incompatlblllty of the two positions. Section 40 of Article XVI of the Constitution forbids any person to hold or exercise at the same tlme more than one “civil office of emolument* with certain exceptions with which we are not here concerned. The position of a faculty member of a State institution of higher learning 1s not a’ civil offlce.~ Such a faculty member is ‘an employee of the State but not a civil officer. even though his posltion 1s bne of emolument. Section 33 of Article XVI,of the Constitution is more restrictive than Section 40 of Article XVI of the Constitution and Section 33 is the one with which we are here more directly concerned. It provides as follows: -The Accounting Officers of this State shall nrKther draw nor pay a warrant upon the Treasury in favor of any parson, 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 thls Constitu- tion. . ..” This section extends the disqualification of a person beyond the mere exercise of a clvll office of emolument. It includes the hold- lng of any other ‘positton of honor. trust or profit” under this State or the United States, except as prescribed in the Constitution. The question recurs then whether or not the position of a faculty member of a State-supported institution of higher learning 1s a ‘position of honor, trust or profltm under this State. Such a facul,ty member does hold a ‘position of honor, trust or profit”, and furkher- more such a faculty member holds such a position “under this State*. This 1s not altered by the’ fact that the employment 1s not directly by the Stats but through Boards of Regents or Dfrectors who have Hon. Perry Brown, page 3 (WW-64) control over such institutions. Such institutions are nonetheless agencies of the State. We also hold that a member of the Advisory Council of the Texa,s Employment Commission likewise holds a position of “honor, trust or profit” under this State. It is therefore the opinion of this office that Section 33 of Article XVI of the Constitution forbids a member of the faculty of a State institution of higher Learning from receiving any compensation whatsoever from State- funds, whether it be classified as per diem or straight salary or travel and subsistence expense or allowance for services rendered as a member of the advisory Council of the Texas Employment Commlsslon. Even though only travel and subsistence expense or allowance be paid to the Advisory Council member, it is still a form of compepsatlon for the services rendered, paid by the Comptroller’s warrant upon the State Treasury. Out of ,precautiop, we should also advise you that the con- verse of the statement made in the preceding paragraph would be applicable to the salary paid to the faculty member of a State lnstitu- tlon of higher learning. In brief, he would disqualify himself !f he should accept the position ads a member of the Advisory Council of the Texas Employment Commission from also recelvlng his salary from the State institutlon of higher learning. We have not overlooked the provision in this Act to the effect “but they shall for no purpose be regarded as State employees”. This legislatlve declaration cannot be given effect to classify the members of the State Advisory Council as non-State employees when the actual facts are to the contrary. Neither have we overlooked your reference to other statutes dealing with the Youth Development Council and the State Board of Trustees of the Retirement System of State employees. The Constitution does not forbid the Legislature from adding ex offlclo duties to officers of the State, constitutional or statutory, for which ,. they receive no additional compensation. Their official status is in no manner changed by the;addltion of such ex offlclo duties. We believe jthe foregolng answers the speclflc question which you ask, but in support of our opinion reference is made to an opinion by the Flrst Assistant Attorney General Cureton, later Chief J.usttce of the Supreme Court, in which he held: “It is very; clear, therefore, that Mr. Mayes, so long as he ,ls Lieutenant-Governor, could not under the Constitution draw pay from the State, as (1) agent, (2) officer,,i(3) appointee of the State. i Hon. Perry Brown, page 4 (WW-64) -As we have above endeavored to show that a professor in the University of Texas is an appointee, or in a limited sense an agent, therefore, Mr. Mayes could not draw a salary from the State as Professor of Journalism in the University. ‘“The converse of the above proposition is also true, and, therefore, Mr. ,Mayts, so long as he was the agent or appointee of the State as a Professor of Journalism in the University, could not draw his pay as Lieutenant-Governor of the State, that ,being an office within ~the ~meaning of the Constitution. ‘Therefore, should Mr..Mayes accept the posi- tion 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.n (Opinions, Book 30, p. 394) SUMMARY. A faculty member of a State educational institutfon of higher learning is a State, employee’ holding a, position f honor, trust or profit under this State anI a member of’ the Advisory Counctl of the Texas Employ- ment Commission ts also holding a pwitdon of honor, trust or profit under tb.ls Stdtc, The same person may not, consistent with, I. Section 33 of Article XVI of the Constitution, hold both positions at the same tima and rece,ive compensation from State funds.for ..’ either. i Yours very truly,, WILL WILSON ” Attorney General LPL:cs APPROVED: ,‘I: OPINION COMMITTEE ~,,’ H. Grady Chandler, Chairman.