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$ce.-
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_ .i ,~..a.:- ‘;~~ .‘ro~,;~~tte~lof.~~~~ I(), 1947, st&te&~,*ht the
recent;Legisi,~ture.,~pr~v~~ed~for,the
appointsient,
of an
Executive Seci&&y:tio@etie the Board of':Regents.of
the'St,ate.TeB,~hers
CoUgee of Texas. You-:state.-that
Se&&or-B;,:L,;",Profferb
~~&'~a'mernber
of that &egSslature,
.~wh%ch:cz%ated,
this positi'on.,
'..You'wish
tooknow whether
.SenPtor..ProffBq~~may
. . lawfully:be.appointedto the above
.
lion. William L. Kerr - Page 2 V-308
.
Similarly, Article 16, SectAm 40, provide8
in part:
"No person shall hold or exercise!at
the same time, mor8 than one sivil office
of emolument . . .*
Rowever, the position of 'Executive Secre-
.tary"to.the Board of Regents of the State ‘$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