Untitled Texas Attorney General Opinion

R-655 July 18, 1947 'Hon. William L. Kerr; President Board ofRegents State Teachers'Colle First EatioliplBaqk Midland, Texas Opinion No. V-308 'Re: Eligibility of a State Senator'tohold the positi~onof wExecu- tlve Secretary" of.the Board.of Regents, State-Teachers.:Col- leges; such office being created during his term of:~off$ce.- :.~. .: : s;;.: \,:: )~_ ;, I: ;, ,.‘I~.::,; ':. _ .i ,~..a.:- ‘;~~ .‘ro~,;~~tte~lof.~~~~ I(), 1947, st&te&~,*ht the recent;Legisi,~ture.,~pr~v~~ed~for,the appointsient, of an Executive Seci&&y:tio@etie the Board of':Regents.of the'St,ate.TeB,~hers CoUgee of Texas. You-:state.-that Se&&or-B;,:L,;",Profferb ~~&'~a'mernber of that &egSslature, .~wh%ch:cz%ated, this positi'on., '..You'wish tooknow whether .SenPtor..ProffBq~~may . . lawfully:be.appointedto the above . lion. William L. Kerr - Page 2 V-308 . Similarly, Article 16, SectAm 40, provide8 in part: "No person shall hold or exercise!at the same time, mor8 than one sivil office of emolument . . .* Rowever, the position of 'Executive Secre- .tary"to.the Board of Regents of the State ‘$zachers Coo;efeafgi0not a #y&&v. It is an employ- *officer exerc see some governmentalfune- tion; he is Investedwith some portion of the sovor- eignty.+ A public office is a right' authority, and duty created and.conferredby law. &he tenure of which is not transient..occasional,or Inaidental, Among the usual triterfa given for determIningwhether an employment Isa public.office or not, ars the require- ments of an effieial oath and bond; that the powers are anted and conferredby law and not by contract. ,Thef? .officerw$5 generally answerablefor misfeasance in'office, and is responsibleforthe acts of his wem- ‘_ tdes as are prescribedby the employingagent. The ?employeew is often subject to discharge at the wilh -of the wofficerv to whom he isresponsible. These matters are fully discussed in Lo d v. _comO,137 S.W. 880, writ.refusedji;&noxv1-Ye- o nson, 141 S.W. (2d) 8,.writ refused;,Meecbcuq,~ Publmcers, Oh? 1; l+ZAm. JUT.,,Public Officers,Sections 2-16; 34 Tax. Jur*, Public Offleers Sections 2-4; and in Annota- tions 53 A.L,Rt 595, 43 A.L,R. 333, 140 A.L.R. 1076. T$&&e5~. Article 3, 8ecti~enIt, and Arti- cle 161.Section40 are not ap llcable;.andSenator ‘Z.’ Preffer'.maybeappojabed to tKmenow poritien~. , Ho~ver~ titic&e 16, Section 33 provides: :, eThr'aeca Bing~offieerslf &h&e State shall *.tlol*\'.drau E" mer pa9 a war- rant upon the treasury in favor of any .__.. *: person, for salary or.aompensation~a6 agent, officer,of.appo+ntee,who &Ids . 'at the same tame any other off&M or or profit Md+r position of.hoRcir:.~truet 'thisState .~e. l 54 Hon. William L. Kerr - Page 3 V-308 A State Senator is an officer of the State. That office is one of honor, trust, and profit. The Executive Secretary is an agent or appointee of the State; and his position is one of honor, trust, and profit. Hence under Sectien 33, the Accounting Of- ficer of this &ate could neither draw nor pay a war- rant on the treasury in favor of Senator Proffer for either place. While holding both places, he could be paid neither as Senator nor as Executive Secretary. In order to be paid as Executive Secretary,he would have to resign the office of State Senator. A similar result was reached in Attorney General's Opinion 0-6458, a copy of which is herewith enclosed.'It was there held that a member of the 49th Legislature could be appointed Executive Officer of the State Board of VocationalEducation, but that he could not be paid from the Treasury thereafter until he resigned from the Legislature. SUMMARY Although a member ef the Legislature is ineligible to accept an woffice* created at the session of whioh he was a member, he may become an wemployee" of the State (as distinguishedfrom an Rofficer") in a place created by such ~session. Hewever, if he ac- cepts such emplo. Jyw he may receive no pay from the State ile holding both places. Art. 16, Sec. 33. He may receive pay for such employment if he resigns his office in the Legislature. .' Yours very truly, mnimirgp Joe R. Greenhill Executive Assistant JRG:erc