THE ATTO~~-EY GENERAL
OF TEXAS
Hbnorable J. P. Gibbs, Commlssfoner
Casualty InsuranceDivision
Board of Insurance Commlssloners
Austin, Texas
Dear Mr. Gibbs: Opinion No. 0-5896
Re: Whether tinemployee of the
State Insurance Commission,who
performs certain'dutiesworking
full time, as required by law,
in that particular posltlon may
draw compensationfrom the State
for this additionalwork before
or after the hours he works in
the regular position.
You vrite us as follows:
"In my department, I am confrontedwith a
very serious problem in that after March 1, 1944,
at least one of the members of my technical
staff in a key position will no longer be with
me because he is entering the armed services.
For quite sometime, it has been a real problem
for my small department to operate and try to
supervise as Is required by law. The casualty
business during the past year amounted to ap-
proximately $~O,OOO,OOO in the State of Texas.
Even In ordinary times, it was difficult to find
available men qualified in actuarial science.
It is absolutely impossible, insofar as I can
determine, for me to obtain anyone qualified in
this particular field of insurancewhLch is ab-
solutely essential to the performanceof the
requirements Imposed upon my department by lav.
"To give you a very specific case, the Read
Of my Automobile Insurance Sectlon, besides his
actuarial capacity, must have the ability to
know contracts and be.able to,draw up instruments
to afford coverage required by the policyholders
who pay normally $30,000,000 in automobile Ln-
surance premiums. This department,as you know,
la required to prescribe standard policy forms
Honorable J. P. Gibbs - page 2 0 -5896
for vorkmen's compensationand automobile lnsur-
ante together vlth all the endorsementsto be used
In connectionvith the writing of such business.
We now have more than 200'endoMement forms &lone
In the Automobile Insurance Section. Th6 Head of'
that section has been called Into the armed services,
and I have pledged niyvora, as has been done by .
business and governmental Institutionsgenerally,
to bald the~posltlotisfor the boys -enteringthe
armed services In order that they might occupy
such positions If and when they return. To my way
of thinking,taking these boys back Into their -
positionswhen they return Is a fundamentalAmer-
ican prlnclple.
"The members of my technical staff during the
last year particularlyhave worked falthfnllyand
dlllgently to perform the duties required. This
serious problem presents to me the questlon of
whether I can pay the present Head of the Workmen's
Compensationtechnical staff who Is highly quall-
fled for either of these two key positions part of
the salary appropriated for the Director of Auto-
mobile Insurancebased on the number of overtime
hours he puts In on this job and at the same time
pay him the full amount of the appropriationfor
the job he occupies principallyas Chief Actuary of
the Workmen's CompensationSection to which he
would give at least eight hours per day of his
services.
"Section15(b) of the current appfoprlatlon
bill ,(Senate
Bill 332) passed by the last session
of the Legislature Is somewhat ambiguous. I should
like, therefore, for you to advise me on the fo.l-
loving question:
"Could an employee vho performs a cer-
tain duty and working the full time as re-
quired by law In that particularposition
draw compensationfor this additionalwork
after or before the hours he vorks In the ~~.
regular posltlon? The additionalvork per-
formed after hours Is not In line vlth his
regular work. _.
“AS this Is a very urgent and importantmatter,
I~res~ectfullyrequest your opinion at an early
date.
2
, .
Honorable J. P. Gibbs - page 3 O-5896
Section 33 of Article XVI of the Constitutionreads
In part as follows:
"The accounting officers of this State shall
neither draw nor pay a warrant upon the Treasury
In favor of any per&on, for salary or compensa-
tlon as agent, officer or appointee,vho holds
at the same time any other office or position of
honor, trust or profit, under this State or theme
United States, except as prescribed In this Con-
stitution.* 4 4 4 4.”
We think your question construed In the light of the
specific Illustrationglven by you, should be answered ln the
negative.
The director and actuary of your Motor Vehicle Insur-
ance Section (Item 26 In the current approprlatloiibill) un-
doubtedly is anagent or appointee,within the meaning of Sec-
tion 33, above quoted whose compensationIs fixed In the
appropriationact at $4000.00 per annum.
The other position mentioned by you, the head of the
Workmen's Ctimpensationtechnical staff -- actuary and chief
clerk -- is lIkewIse a position as an agent or appointee, '-
whose compensationIs fixed at $4000.00 per annum by the ap-
proprlatlonact, and both are positions of honor, trust and
profit. So that It would follow perforce of the express terms
of the Constitutionthat one occupying either of these posi-
tions would be forblaaen to receive compensationfrom the
State for services performed in the other. In truth, vhlle
occupying both position8 he could be paid for neither.
The situation and principle here dlsciissedhas been
thus stated by First Assistant Attorney General, C. U. Cureton,
afterward Chlef Justice of the Supreme Court, as follows:
"An analysis of the above quoted section of
the Constitutionresults In the following:
That the accounting officers of this State are
prohibited from drawing or paying a warrant upon
the treasury In favor of any person for (a) salary,
(b) compensation;as (1) agent, (2) officer; (3)
appointee, lf such person at the same time holds
any other (1) offlce, 2 position of honor, (3)
position of trust, or II
4 posltlon of proflt, under
this State or the United States.
"Mr. Uayes Is the Lieutenant-Governorof this
State, and under the Constitutionas above quoted
Honorable J. P. Glbbs - page 4 0 -5896
and discussed that la an office. It is llkevlse
a position of honor and trust, and while It could
hardly be said, owing to the very nominal salary
paid, that It Is a position of profit, yet there
1s a compensationattached to the office of Lleu-
tenant-Governor,which, be It great or small, Is
Intended as.8 remunerationfor the time devoted
to the office.
"It is very clear, therefore, that &.. Hayes,
so long as he is Lieutenant-Governor,could not
under the Constitutiondraw pay from the State,
,a~~:;)agent, (2) officer, (3) appointee of the
.
"As we have above endeavored to show that a
professor In the University of Texas is an ap-
pointee, or lnallmltea sense an agent, there-
fore, 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. Mayes, so long aa
he was the agent or appointee of the State as a
Professor of Journalism in the University, could
not draw his pay as Lieutenant-Governorof the
State, that being an office within the meaning of
the Constitution.
"Therefore,should Mr. Mayes accept the posl-
tlon 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 o* such posl-.
tlon." -- Opinions of Attorney General 1912-1914,
p. 880.
Further analyzing the Constitutionand expounding its
meaning as to those servants of the State coming within its
scope, that opnlon declares:
"The State can only act through representatives,
and such representativesare divided Into tvo classes
primarily. The first class Is that of officers,who
may be either elected by a Vote of 'thepeople or re-
ceive their commissionsby appointment by virtue of
some provision of the Constitution or statute,who
.-,.
take the oath of office and are generally required
to enter Into bond for the faithful performanceof
their duties 1 and such other obligationsas~;are
Honorable J. P. Gibbs - page 5 O-5896
Imposed by the statute and who exercise some func-
tion of government.
"The second class In the broader sense des-
ignates all other servants of the government as
employees of the government or some of its agencies
or lnstltutlons, who hold their position by reason
of contract made and entered Into by and 'between
such person and some officer or agent of the State
government who 1s authorized or directed to make
such contract by some provision of the Constltu-
tlon or statutes of the State. Such employee
takes no oath and executes no bond and may be
discharged at the pleasure of the appointing power.
The tenure of his position Is fixed by the con-
tract made and entered Into between such employee
and the appointing power, or It may terminate
according to the contract at the pleasure of the
appointing power.
"Under one or the other of the above two
classifications a professor in the University
must fall; that is, he must either be an officer
of the State or he must be an employee, and we
will now direct our attention to fixing the status
of a professor aspone or the other." -- Opinions
of Attorney General 1912-1914, p. 874.
That opinion has often been cited and quoted, and ve
think It represents the true construction of the Constitution.
We appreciate the stress of present conditions as ft.
~affects the admlnlstratlon of the affairs of your department,
-to be sure, but exigencies of whatever magnlttiaewill not
justify vlolatlon of a plain constitution.
Very truly yours
ATTORNEYGENERAL OF TEKAS
OS-MR-WC BY s/Ocle Speer
Oole Sp6er
Assistant
APPROVED MAK8, 1944
s/Gee. P. Blackburn
Acting--ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BwB Chairman