* R-597
OFFICE OF
AUSTIN. TEXAS
PRICE DANIEL JULY 15, 1947
,,rrORNEY GENLRAI.
Hon. C. H. Cavness Opinion MO. V-303
State Auditor
Capitol Building . Re: Construtitionof Arti-
Austin, Texas cle 16, Sections-33
and 4.0,Texas Consti-
tution, as applied to
an independent con-
tractor.
Dear Mr. Cavness:
In your letters of June l&h 'and3Gth, you
state that Mr. Jac L. Gubbels is a full-time employee of
the State Highway Department, holding the position of
"Head Landscape Architect n a position created by that
Department which is not &ted in the AppropriationBill:
His salary is paid'out of the State Treasury by warrant.
During the time Mr. Gubbels was so employed, he‘entered
into an agreement with the Austin IndependentS&ho01
District. through its Board of Trustees, to:.conduota
survey oh the Austin school system, and to'make recom-
mendations for the locations for new sdhool sites In
'connectionwith a program of develo ment through the'
year 1966, Under such contract, anx while employed by
the State Highway Department, Mr. Gubbels conducted the
survey and made recommended locations for thirty-one
school sites at an agreed fee of $750.00 per site. A
check was issued to Mr. Gubbels on June 4, 1947, by the
School Board in the sum of $23,250.00 for such services.
You disclose that such check was paid from the proceeds
of the sale of certain building-bonds issued "by the
itzen Independent School District and/or the City of
. .a You further state that: We have not ascer-
tained as to whether any portion of Mr. Gubbels' School
District duties were performed during working hours for
tihicbhe was being paxd as an employee of the State
Highway Department."
Your question is whether Mr. Gubbelst employ-
ment.by the Austin Inde endent School District, concur-
rent wxth full-time empPoyment by the State of Texas,
comes within the prohibition of Section 33 of Article
16 of our State Constitution.
Hon. C. H. Cavness - Page 2, V-303
12
At common law (adopted as the law of Texas in
Article 1, R. C. S., when not inconsistentwith our
statutes or Constitution),,Where is no limit to the
number of offices which may be held simultaneouslyby
the same person, provided that neither of them is in-
compatiblewith any other; and this rule extends to
offices of the highest grade, and which involve, for
their adequate performance,the greatest expenditureof
time and labor-v Throop, Public Officers, p. 33. It
is stated in Vol. 2 (Rev.) McQuillin on MunicipalCor-
porations, at page 144, that, "The same person may hold
different offices which are not incompatible,unless
forbidden by 1aw.v 43 Am. Jur. 153 recites that: "In
the absence of express or implied statutory provision
to the contrary,an officer who holds two or more-sepa-
rate and distinctoffices, not incompatible,is enti-
tled to the compensationattached to each office." And
in 46 Corpus Juris, page 941, it says, "At conrmonlaw
the holding of one office does not of itself disqualify
the incumbentfrom holding another office at the same'
time, provided there is.no inconsistencyin the func-
tions of the two offices in question . . . The incon-
sistency . . . does not consist in the physical impos-
sibility to dischargethe duties of both offices,but
lies rather in a conflict of interest, as where one is
subordinateto the other . . . or'has the power to're-
move the incumbent of the other, or to audit the ac-
-counts of the other."
. .
Meechsm on Public Offices Fd Officers,' p.
269, announcesthe rule to be that: . . . the mere
physical impossibilityof one person's performingthe
duties of the two offices as from the lack of time or
the inability to be in two places at the same moment,
is not the incompatibilityhere referred to. It must
be an inconsistencyin the functions of the two of-
fices, as judge and clerk of the same court, claimant
and auditor',and the like."
Under Tekas cases, applying the common la%
rule, various positionshave been held incompatible;
*hat is, city secretary and city recorder, State v.
Brinkerhoff, 66 Tex. 45; school trustees and town al-
dermen, Thomas v. Abernathy County Line Inde endent
School District (Comm. App.) 290 S.1152;*a
position with the Texas Employment Service and also
private employmentimposing the same duties, A. G. O-
pinion O-2929; County Commissioner and trustee of a
Hon. C. H. Cavness - Page 3, V-303 I3
rural high school district,A. G. Opinion O-5145. See
casenote by John W. Stayton, 12 Tex. Law Rev. 367.
Ap lying these tests, it was held in A. G. Opinion .
V- 83 (1947) that the offices of County Commissioner
and trustee of an independentschool district were not
incompatible. That opinion quotes the following from
Knuckles v. m of Education (Ky. 1938), 114 S.W.
7-n "1. . . Gcompatibility is recognized when-
ever one is subordinateto the other . . . or is sub-
ject to supervisionby the other, or where a contrarity
and antagonism would result in the attempt by one per-
son to discharge the duties of both.. . . two offices
are incompatiblewhere the incumbent of one has the
power to remove the incumbent of the other, . . . and
it also exists where the incumbent of one office has
the power of appointment as to the other office, or to
audit the accounts of another, norto exercise a super-
vision over another.'"
But the position Mr. Gubbels held with the
Highway Department of'the State .in.conuectionwith
hi&wa beautificationis not incompatible,,underthe
tests 2:
aid down by the common law,rules of decision,
with that of locating school sites. The two have lit-
tle or nothing in common. Neither is subordinate to
the other. The incumbent of neither has a supervisory
or appointive power over the other. There Is no in-
consistency in the functions of either, as the word
Vnconsistencyn is used in the common law.
All of these authorities rovide, in sub-
stance, that eunless prohibited by Paw" a person may
hold more than one position with the State, assuming
no incompatibility. It therefore becomes necessary to
see what prohibitionshave been written into our law,
and what changes have been made in the common law as
applicable to Texas.
The.‘framersof our Texas Constitutionmade
two exceptionsto the common law rule in Article 16,
Sections 33 and 40. Section 40 rovides that "No pe -
son shall hold or exercise,'attRe same time more tEarl
one civil office of emolument . . . ." (EmpAasis is
added throughout this opinion.)
The distinctionbetween a public nofficer"
and an "employeev of the State is clearly drawn in an
Attorney General's opinion of September 22, 1913, by
C. M. Cureton, later Chief Justice of the Texas Supreme
Hon. C. H. Cavness - Page 4, v-303
24.
court: An ~~officervexercises some governmentalfunc-
tion; 'heis investedwith.some portion of the sover-
eignty. A public office is a right, authority, and duly
created and conferredby law, the tenure of which is
not transient, occasionalor incidental. Among the cri-
teria given for determiningwhether an employment is a
public office or not, are the'requirementsof an offi-
cial oath and bond; that the powers are granted and con-
ferred by law and not by contract. The vofficerv is
generally answerable for misfeasance in office, and is
responsiblefor acts of his "emp1oyees.v Employment,
on the other hand, is establishedby contract. It in-
volves performingsuch duties as are prescribed by the
employing agent. The llemployee'l is often subject to
discharge at the will of the "officerv to whom he is
responsible. It was specificallyheld in Olmstead 1.
The Mayor of New York, 42 U. Y.,Super. Ct. 481, that a
Edsca arcmema position similar to that of Xr.
Gubbelsr who was regularly eroloyed in the Department
of F'ubliiWorks, was an "ezplo$een of the Commissioners
and'not a public officer. These matters are fully dis-
cussed in Loard v. Cs, 137 S.W. (2d) 880, writ re-
fused; Knox v. Johnson, 141 S.W. (2d) 698, writrefused;
Meechsm, Publicwrs, Ch. 1; 42 Am. Jur:, Public
Officers, Sections 2-16; 34.Tex. Jur., Public Officers;
Sections 2-4; and in Annotations 53 A.L.R. 595, 93
A.L.R. 333, 40 A.L.R. 1076.
,.C
.
Under the above'rule, the place Es. Gubbels
holds with the Highway Department is.clesrly not an
"office? but is a mere employment. Hence Section 40 is
not applicable.
The second prohibition laced in our Consti-
tution is Section 33 of Article 1% . The pertinent por-
tions of that section read:
"The accounting officers of this State
shall neither draw nor ay a warrant upon
the treasury in favor oT any person, for
salary or compensationas agent, officer or
appointee, who holds at the sane time any
other office or position of honor, trust or
profit under this State . . . .I'
While school districts do not enjoy certain
privileges and immunities enjoyed by the State (for ex-
ample, the two year statute of limitation is applicable
to them,,Hatcherv. State, 125 Tex. 84, 81 S.W. (2d)
. .
Hon. C. H. Cavness - Page 5, V-303 15
499, noted 14 Tex. Law Rev. 4111, it is generally held
that they are state agencies, erected and employed for
the purpose of administeringthe State's system of-pub-
lic schools. Love v_.Cit of Dallas, 120 Tex. 351, l+O
S.W. (2d) 20. Lewis v.-I+-
n e enwchool District of
Austin, 139 feD,-l6*f mupuy v
-. State,
125 Tex. Crim. 595, 121 S.W. (2d) 1003; 37 Tex. Jur.
865.
Under the above cases, a person holding an
"office or position of honor trust, or profit" in a
school d.?.?trict,
would be hoiding the same "under this
State."
~However,from the facts given by you, it ap-
pears that Mr. Gubbels did not'hold an "office" or
flpositionnin the ordinary sense. He was not carried
on the School District's payroll as an agent, servant,
or employee. He was not employed on a yearly or month-
ly basis. He did not have auyone to tell him when,or
how to-work, or Mat hours to keep; he was responsible
to no one in the manner of his work; he had no desk,
or office hours, or title. He was free to employ as-
sistants without consulting anyone; and he, not the
School Board, would have been responsible for his own
and the torts of-,suchassi+antsr
._'
.
An "independent contractorn is defined in
POE;: 2 of the Restatement of the Law of Agency as
*An independent contractor is a person who
contra& with another to do something for him but who
is not controlledby the other nor subject to the
other's right to control with respect to his physical
conduct in the performance of the undertaking."
In distinguishing an independent contractor .
from an employee or servant, 2 American Jurisprudence
17 says, "An independent contractor may be distin-
guished from an agent in that he is a person who con-
tracts with another to do something for him, but who
is not controlledor subject to the control of the
other in the performance of such contract, but only as
to the result. A principal, on the other hand, has
the right to control the conduct of an agent with re-
spect to matters intrusted to him. The theory which
in many cases is adopted to differentiatebetween an
agent and an independent contractor is that one is to
be regarded as an agent or an independent contractor
according to whether he is subject to, or free from,
Hon. c. H. Cavness - Page 6, V-303
3%
the control of the employer with respect to the details
of the work. . . .v'
Justice Shar in Industrial Indemnit Ex-
;ham?~ =;:&I;! Q=~~531, 160 @ 7ja5,
: "The general rule relat-
ing to independentcontractorsrests upon certain ret-
ognised tests; although such tests are not necessarily
concurrentwith each other, nor is each test in itself
controlling. Such tests are: (1) The independentna-
ture of his business; (2) his obligation to furnish
necessary tools, supplies, and material to performthe
job; (3) his right to control the progress of the work,
except as to finalresults; (4) the time for which lie
is employed; and (5) the method of payment, whether by
time or by the job. There are other tests, but the
foregoing are consideredthe essential tests upon.which
such rule is based."
Mr. Gubbels~was not, therefore, under the a-
bove criteria, an agent or employee of the SchoolDis-
trict. His positionwas that of an independent con-
tractor.
The question then remains as to whether an in-
dependent contractorwho enters on a contractual agree-
ment with a school district holds an'noffice.-
or Pa
of honor, trust, or profit," within the meaning o
tion 33.
A similar situationwas presented to this de-
artment in 1927. Mr. J. A.,Phillips, a member of the
8 exas State Board of Accountmcv. desired to ascertain
whether, while holding that position he could either
(1) receive regular pay as an em loyee of a state agency
for doin accountingwork, or (2P perform such services
as an in2ependent contractor. In an able opinion by
Mr. D. A. Simmons, later president of both the Texas Bar
Association and the American Bar Association, this of-
fice said,
t,
. . . . Therefore,we can .advisewith-
out hesitancy that being a member of the
State Board of Public Accountancy under the
Constitutionyou could not be paid compensa-
tion as an agent, officer or an appointee of
the State or any of its subdivisions. If,
however, the employmentyou have in mind is
as an independentcontractor and not as an
Hon. C. H. Cavness - Page 7, V-303 17
\ t
agent, officer or appointee of the St&e,
we have found no provision of the Consti-
tution or law which would prevent you from
accepting such a contractwhile serving as
a member of the State Board of Public Ac-
countancy. We take it that this board has
nothing to do with letting such contracts
or fixing in any manner the compensation
therefor." (Op. No. 2671, Bk. 62, p. 109;
Biennial Report 1926-28, p. 406)
That opinion has never been overruled and is
similar to the situation presented by Mr. Gubbeis. It
was followed in an opinion by First Assistant Attorney
GeneralScott Gaines in 1937, wherein it was held that
the County Auditor of Harris County could take inde-
pendent contracts to audit the books of independent
school districts where such services were not required
of him as County Auditor.
Many similar facts were involved fn.Cit and
Count of San Francisco V. Boyd (Cal. Sup. 19.d Ins
d)='76; The city &arter provided that 'nAil
z&+g?&;.; and offices shall be included'in the
The citv made a contract to emolov an
expert on traffic controi at a.large sala ti,iakz,
recommendationson traffic planning. The'Eomptroller
objected to the contract because, among other reasons,
it failed to put the planner under -civilservice. In
holding the contract valid and in holding that he held
neither an "office" nor a Cposition,nbut was an inde-
pendent contractor,the Court qaid,
"The proposed contractoris not to
be placed in any osition provided for by
the charter. He bis to e engaged under a
contract to do a specific job~and all of
the assistants which he will employ from
the typist in his'office to his most high-
:flypaid engineer are to be instrumentalities
of his own choosing and for whom he is to
be responsible. They do not become.city
employees in the sense of that word, as
used in.reference to the classified service,
but are to be employees of the engineer
whose contract requires that he supply the
city with estimates plans programs and
reports, such as wiil enable the munici-
pality to advance the public welfare by the
improvement of conditionswith respect to
Hon. C. H. Cavness - Page 8, V-303
3.8
which his services will be rendered.
1). . . .,~Becausethe supervisorsin the
exercise of their discretion prefer to keep
check upon the details of the cost of the
work to be done by the contractor rather
than to contract for the survey to be done
for a lump sum does not alter the fact that
the contractor is employed as an independent
contractorto do a specific job and to get
for himself a definite profit."
It is therefore, our opinion that Sections 33
and 40 of Articie 16 of our Constitution do not prohibit
Mr. Gubbels from taking work as an independentcontrac-
tor while em loyed by the State Highway Department.
Xbether Mr. iz
ubbels fully performed his duties to the
Highway Department is a matter for the officials in
chargesof that Department to decide, and for which they
are responsible. Under Section 14(c) of Senate Bill
317, Acts 49th Legislature, p. 945 (StateDepartmental
AppropriationBill), it is provided that no salary shall
be paid any person unless such person actually dis-
charges his assigned duties.
If Mr. Gubbels fully erformed all the duties
assigned to him by the Highway 5 epartment during the
hours required by the Departmental AppropriationBill,
it was not a violation of the law for him to perform, or
have performed,the work required on the school loca-
tions "on his own timel1before and after Hi hway Depart-
ment working hours. On the other hand, if i! e did not
discharge the duties and work during the hours required,
he is entitled to no pay for such period of time under
the provisions of S. B. 317, supra.
This opinion covers only the question of the
legality of Mr. Gubbels' contract and payment as an in;
dependent contractorby the School Board while he was
acting and receiving pay as an employee of the Highway
Department. The fact that the law does not prohibit
such an arrangement should not be consideredas an ap-
proval thereof as a matter of public policy. Neither
should this opinion be considered an approval of the
actions of either the School Board or the Highway De-
partment as a matter of public policy. It is difficult
to believe that State employees can engage in outside
work of such magnitude without some loss of time and
. . .
Hon. C. H. Cavness - Page 9, V-303
thought to the State's business. Similarly, in most
cases, a School Board would not receive as much thought
and planning on such a project from one who is occupied
eight hours each day on another job. Be that as it
may, until and unless the Legislature speaks on this
subject, it is entirely up to the State Department and
the School Board to determine their respective policies
concerning the matters involved in this case.
. -
SUNMARY
An employee of the State Highway De-
partment is not prohibited by law from en-
tering into and executing a contract, as an
independent contractor,with an independent
school district for work to be performed
before and after Department hours, where
there is no incompatibilityin such work
and no failure to.dischargeState duties.
Such practice.is questioned as a matter of
public policy, but until the Legislature
speaks on the subject, it is for the State
Department and the School Board to decide
their respective policies in such matters.
(ConstruingTexas Constitution,Art. 16,
Sections33 and 40.)
Yours very truly,
ATTORREY GENERAL OF TEXAS
W Joe R. Greenhill
Executive Assistant
APPROVED:
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