Honorable George W. Cox
State Health Officer
Austin, Texas
Deer Sirs Opinion No. O-2471
Rer Should en individual employed
by the State who wes celled
for a period of 28 days 'train-
ing es a reserve officer in
the United States Army be el-
lowed pay from the State for
more then the amount of 12
working days which would be
termed es his vacation?
Your recent request for en opinion of this department on the
above stated question has been received.
I% quote from your letter es follows:
"Should en individual employed by the State, who
wes celled for a period of twenty eight days training
es a Reserve Officer in the U. S. Army, be allowed pey
from the State for more then the emotmt of twslve wcrk-
iag days which would be termed es his vecetim?
"Captain Chester Cohen is employed by this depert-
ment es engineer on stream pollution end is nom in
training in San Antonio. He has been assisting cur
Engineering Bureau during the time he is off duty
while in training.
"A letter is enclosed which has been prepared end
simed by Mr. V. M. tihlers,Director of the Bureau of
Sanitary hhginoering in whose division Captain Cohen
is employed. This attached letter offers to e degree
an explanation of the services which were rendered the
department by Captain Cohen during the above mentioned
training period."
we also quote from the letter of Mr. V. M. Ehlers, Director
Bureau of Sanitary %ngineering, addressed to Mr. P. A. Kerby, edmin-
istretive Assistant, es fcllcWS:
- .
Honorable George W. Cm, page 2 o-2471
"In response to your inquiry about Mr. Chester
Cohen's activities during the month of June, please
be edvised that Mr. Cohen informed us upon his cell
to military duty that he would be only too happy to
keep the stream pollution work going while on duty
putting in extra time and continuing to direct the
stream pollution studies.
"At the beginning of the month he esssmbled the
equipment for the mobile stream pollution laboratory
located at a convenient place in San Antonio end
also instructed hh-.Berreda in his duties on cclleaticn
of samples, records, end the like. Ee spent one day
in Houston with Mr. W. C. Geuntt discussing with him
the work that we have underway on meet pecking wastes
in that city (see copy of his report.)
"Gn the 15th of this month he ecccmpanied Mr, ?:.
J. M. Berg, Superintendent of the City Sewage Treet-
ment Plant of San Antonio, to Austin for e conference,
Earlier in the month he conferred with Mr. J. 5,
Bsrette on the program of solving the sewage problem
of the -hvcLaredo8 (see copy of letter).
"He checked the arrival of all laboratory equip-
ment . He transmitted e pictorial survey of the mobile
stream pollution laboratory. On June 4th ws referred
to him e ccmmunioeticn from Capt. E. T, Norman steticn-
ed et Kelly Field requesting assistance in the rehebil-
itaticn of several of the Army sewage plants in Sen
Antonio. On June 6th we requested that he acnfer with
hh-.Terre11 Bartlett, consulting engineer of San
Antonio, with reference to the Nixon water supply end
on which he gave us a reporb. On June 5th he trans-
mitted photographs end flcr diagrams to accompany en
article on textile mill wastes.'
Section 12 of Article XVI of the Constitution of Texas prCVidsS8
"No member of Congress, nor person holding or
exercising any office of profit or trust, under the
United States, or either of them, or under any foreign
power, shell be eligible es a member of the Legisle--
ture, or hold or exercise any office of profit or
trust under this State.'"
This provision of the Constitution is qualified by recent
amendments to Sections 33 end 40 of Article XVI, adopted November 8,
1932. These sections reed:
- -
Honorable George R. Cm, pegs 3
“Sec. 33. The Accounting Officers of this State
shell neither draw nor pay a warrant upon the Treasury
in favor of any person, for salary or compensation es
agent, cffioer or appointee, who holds et the same
time any other office or position of honor. trust or
profit, under this State or the iJnitedStates, exoept
ea prescribed in this Constitution. Provided, that
this restriction es to the drawing and paying of
warrants upon the Treasury shell not apply to Officers
of the National Guard of Taxes, the National Guard
Reserve, the Officers Reserve Corps of the United States,
nor to enlisted men of the National Guard, the X:eticnel
Guard Resezv'e,and the Organized Reserves of the lJnited
States, nor to retired officers of the United States
Amy. Navy, and Marina Corps, and retired warrant officers
and retired enlisted man of the United States Army, Nevy,
end Marine rorps.
“Seo. 40. No person shall hold or exercise, et
the same time, more than one Civil Offioe of emolument,
except that of Justice of Peace, County Commissioner,
Notary Publio end Postmaster, Officer of the National
Guard, the Neticnel Guard Reserve, end the Officers
ReserrreCorps of the IJnitedStates end enlisted men of
the National Guard, the National Guard Reserve, end the
Orgenized Resellresof the United States, end retired
officers of the United States Army, Nevy, and Marine
Corps, end retired werrent officers, end retired
enlisted men of the United States Army, Navy, and Marine
Corps, unless otherwise specially provided herein.
Provided, that nothing in this Constitution shell be
construed to prohibit an officer or enlisted men of the
National Guard, and the National Guard Reserve, or an
officer in the Officers Reserve VW-pa of the United
States, or en enlisted men in the Organized Reserves
of the United States; or retired officers of the United
States Army, Navy, and Marine Corps, end retired warrant
officers, end retired enlisted men of the IJnitedStates
Army, Nevy, and Marine Corps, from holding in conjunction
with such office any other office or position of honor,
'trust or profit, under this State or ths United States, or
from voting at any Election; General-,Special or Primary,
in this State when otherwise qualified."
We quote from cur Opinion No. O-2426, as follows:
"It is clear that under Sections 33 end 40 of Article
XVI of the Constitution of Texas, end the departmantel
payroll affidavit interpreted in the light of these
acnstituticnal provisions, en officer in the Officers
Honorable George W. Cm, page 4 o-2471
Reserve Corps of the United States may hold in oonjunc-
tion with that offiae any other position of honor, trust
or profit in the State of Texas. and may receive salary
or compensation for the same.
"You are accordingly advised that employees of the
Board of Insurance Commissioners who are Reserve Officers
in the United States Army may continue receiving their
salary from the State of Texas lrhile011active duty during
their vacation, and under the circumstances described you
may make the payroll affidavit required by the Comptroller."
n . . . . .
"You are advised that this Seotion of the Departmental
,ApproprietionBill must be strictly complied with and
State employees are limited to Twelve days' vacation,
exclusive of Sundays and legal holidays, without deduction
in salary."
In this connection ws call your attention to that porti.onof
Section 2 of the Departmental Appropriation Bill, Senate Bill 427, pacts
1939, 46th Legislature, dealing with vacation allowance for State
employees, which provides as followsr
"Vacation Allowance. Department employees shall,
without deduction in salary, receive not exceeding twelve
days' vaoation, exclusive of Sundays and legal holidays,
on which State offices sre olosed, for each State fiscal
year, suoh vacation period to be mutually agreed upon by
the head of each department with his employees, provided,
that employees belonging to the Texas fiationalGuard may
have their vacation at the time of the meeting of the an-
nual enoampnent. Provided, that no employee for whom a
salary is hereby appropriated, shall receive compensation
while on vacation unless he or she has been an employee of
the department for not-less than six oalendar months
preceding the vaaation period."
We are enclosing herewith a oopy of our Opinion Iio,O-2426 for
your convenienoe.
We call your attention to that portion of the Departmental Pay -
roll Affidavit required by the Comptroller of Publia Accounts to be made
by the head of each State Departient, whioh reads as follows:
I'*+ + and that none of the employees on this payroll
*re receiving 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 the State Constitution.'
Honorable George W. Cox, page 5 O-2471
Seotion B of the rider to the Departmental Appropriation Bill,
under the head of salary and other provisions, p0 147, Senate Bill &lo.
427, Acts 46th Leg., 1939, reads in pert es follows:
"No salary for which en appropriation is made herein
shell be paid to any person unless suah person actually
discharges assigned duties, hvery month the head of each
department shall attaoh to the payroll for his dapar+8sent
en affidavit, under oath, stating that the person8 listed
in said payroll actually performed the duties for whioh
they wers being paid. The Comptroller shell not issue
warrants for the payment of salaries listed on said pey-
roll unless this affidavit is filed with him, Eeoh de-
partment head shall number aonsecutively the salaried
positions in his department for which an appropriation is
made herein (either out of the Ceneral~Revenue Fund, fees,
receipts, speoial funds or out of other funds available
for use by said department) and opposite the number of
the position, he shell set out the title of the position
end the name of the person employed to fill the same,
This ststement shall be filed with the Comptroller, who
shell, when issuing his warrant to any employee in pay-
ment of salary due said employee. number the warrant with
the seme number that is assigned to the position filled
by said employee. Every department head shell notify
the Comptroller in writing of any changes in personnel
in his department. This provision shell not apply to
seasonal help, end shall not prevent persons drawing
their salary warrants during authorized vacation periods,"
Employees are required to perform the duties and render the
services as required by the heeds of the various departments and tihen
the head of such department makes the affidavit es above mentioned,
stating that the employee has performed the duties assigned to him then
such mployee would be entitled to his compensation as such. It is true
that employees are limited to twelve days vacation exclusiva of Sundays
and legal holidays without deduotion in salaryj however, this is where
the employee performs no duty or renders no services end is errtitledto
his aompensation notwithstanding that he has performed no duty or
rendered no serviae.
Trusting that the foregoing fully answers your inquiry, we are
Yours very truly
ATTORNXY GISNhRALOF TEXAS
AW:L1#:wc By s/!ArdellWilliams
APPROVED JLKY 11, 1940 s/Grover Sellers Ardell Yiilliams
FIRST ASSISTANT ATTORNEY GENERAL ~Assistant
This Opinion Considered and Approved In Limited Conference