TIEEATTORNEYGENERAI.
OF-XAS
AUSTIN xx. TEXAS
GROVERSELLERS
*TroRxEY GENERAL
Hon. Stansell Bryan
Criminal Distr,ict Attorney
McLennan County
Waco, Texas
Dear Sir: Opinion NO. O-7318
Re: Whether or not it is lawful
for a member of the Texas
State Legislature to work for
the United States Public Health
Service as a Supervisor of
Typhus Control.
Your letter of recent date requesting an opinion from
this department on the above subject matter is as follows:
"I would appreciate It if you would advise me
whether or not it is lawful for a member of the
Texas State Legislature to work for the United 6tates
Public Health Service as a Supervisor of Typhus Con-
trol, provided such member of the Legislature does
not draw a federal salary while the Legislature is in
session."
In answer to our letter requesting certain information
concerning the position mentioned in your inquiry, we received
the following from the United States Public Health Service:
"1 . Mr. Sam Sellers was employed off of a
regular Civil Service Register by the Federal Gov;
ernment with a classification of Engineering Aide,
SP-5.
"2 . His title of classification was Engineering
Aide,.SP-5, when he was employed, and he still held
that same position when he resigned. His duties were
to work with a dusting crew on our Typhus Program.
"3 . He received a salary from the Federal Gov-
ernment and not from the State Government.
"4 . Yes, he took an oath of office the same
as all other Federal employees when entering on duty.
-,
Hon. Stansell Bryan, page 2 O-7318
“Mr. Sellers resigned this position on June 21
1946. ”
Article 16, Section 12, of our State Constitution pro-
vides as follows:
“No member of Congress nor person holdlng,r
exercising m office of urofit or trust under the
United States, or either of them, or under any foreign
power --shall be eligible as a member of the Legislature
or hold or exercise any Tf?oe of profit or trust under
this State. ”
It is generally held that the most important character-
istic which distinguishes an office from a position is that the
creation and conferring of an office Involves the delegation to
the individual some of the sovereign functions of government.
See 34 Texas Jurisprudence, pp. 322-326; Mechem on Public Offices,
9 g b-10; Kimbrough v. Barnett, 93 Tex. 310, 55 S.W. 122; and
CornmiSSIoners Court of Limestone County v. Garrett (Commlsslon
of Appeals) 236 S.W. 970.
We quote the following from the Limestone County case:
“‘The most important characteristic which dis-
tinguishes an office from an employment or contract is
that the creation and conferring of an office involves
a delegation to the individual of some of the sover-
elgn functions of government, to be exercised by him
for the benefit of the public; that some portion of the
sovereignty of the county, either legislative, execu-
tive or judicial, attaches, for the time being, to be
exercised for the public benefit. + + * In distinguish-
ing between an office and an employment, the fact that
the powers in question are created and conferred by
law is an Important criterion. For, though an employ-
ment may be created by law, It is not necessarily so,
but is often, if not usually, the creature of contract.
A public office, on the other hand, is never conferred
by contract, but finds Its source and limitations in
some act or expression of the governmental power. * * *
Public officers are usually-required by law to take
the oath of office, and this fact goes far in determin-
ing the character of the duty. But the taking of the
oath is not an indispensable criterion, and the office
may exist without It, for, as has been said, the oath
is a mere incident and constitutes no part of the
office. * * + If a duty be a continuing one, which Is
defined by~rules prescribed by the government, and not
by contract, whLch an individual is appointed by gov-
Hon. Stansell Bryan, page 3 0 -7318
ernment to perform, who enteres on the duties per-
talnlng to his statlon without any contract de-
fining them, if those duties continue though the
person be changed, it seems very difficult to dls-
tinguish such a charge or employement from an
officer. * * * At the same time, however, this
element of continuance cannot be considered as in-
dispensable, for, if the other elements are pre-
sent, It can make no difference whether there be
one act or a series of acts to be done, whether
the office expires as soon as the one act is done,
or is to be held for years, or during good be-
havlor.' Mechem on Public Officers, g f4 4 to 8.
"'Public office is the right, authority, and
duty created and conferred by law by which, for a
given period either fixed by law or enduring at the
pleasure of the creating power, an Individual is
vested with some portion of the sovereign functions
of the government to be exercised by him for the
benefit of the public.' The correctness of this
definition is nowhere questioned, so far as we know,
and it is useless to add supporting authorities.'
Kimbrough v. Barnett, 93 Tex. 310, 55 S.W. 122.
"'A man is none the less a public officer where
his authority is confined to narrow limits; for it is
the duty of his office and the nature of that duty
which make him an officer, and not the extent of his
authority.'" Mechem on Public Officers, El 9.
We have carefully considered the duties of the position
of Federal Engineering Aide, SP-5 in the light of the foregoing
authorities and it is our opinion that such position does not
constitute an office of profit or trust under the United States,
but constitutes a position of profIt or trust under the United
States.
We'call your attention, however, to Section 33 of Article
16 of our State Constitution which provides in part as follows:
'The Accounting Officers of this State shall
neither draw nor pay a warrant upon the Treasury In
favor of any person, for 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 pre-
xed in this Constitution."
There are certain exceptions provided in the foregoing
Hon. Stansell Bryan, page 4 o-7318
Section which, however, are not material to the question under
conslderatlon.
.
Our Opinion No. 0-2607 in construing Section 33 of
Article 16, stated the following:
"It Is clear that this section does not seek
to prohlblt the serving of the State by one inai-
vldual In more than one capacity. The provision
addresses itself only to the matter of compensation.
Thus, a man may hold two offices, or an office and
a position of honor and trust under the State, If
no compensation attaches to either place. But If
he holds an office, or is an agent or appointee,
and to such place compen sation attaches, he may
not be paid for services rendered in that capacity
during the period of time that he holds another
position of honor or trust under the State or the
United States. From this general statement as to
what the section does and does not prohibit, we
gather the general policy embodied therein. This
policy seems obviously to be that no person should
receive compensation from the State for services to
be rendered it, when during the time such compensa-
tion is to be earned such person, by accepting and
holding another position under the State or the
United, States, has obligated himself to render
services In connection with the latter positlon,
so that he may not render full value in the first
capacity for the compensation which the State has
agreed to pay. So construed, we find that the
Section is but one of the many in the Constitution
seeking to place every conceivable safeguard about
the expenditure of State monies. So construed, this
Section seeks to avoid even the possibility that
the State may not receive a full quid pro quo for
expenditures by way of compensation for services to
be rendered in one capacity, by reason of the person
serving In that capacity placing himself in such a
position that he may be tempted to neglect the
duties of the one place for the responsibilities
of the other."
We quote the following from our Opinions No. O-5317:
"If the place in the Federal Civil Service is an
'Office', then, upon accepting and qualifying therefor
the member of the Legislature will automatically for-
feit and vacate his office as member of the Texas Leg-
islature, perforce of the provisions of the Constitu-
Hon. Stansell Bryan, page 5 O-7318
tion, Article 16, Sec. 12. If the place in the Federal
Civil Service is not an 'office' but a 'position' of
'honor trust or profit', then, under Sec. 33, the
member if the Legislature could not be compensated as
such If, over the period for which compensation as a
member of the Legislature was claimed, he also held
the place in the Federal Civil Service. Since members
of the Legislature are paid per diem only for the days
during which the Legislature Is in session, the member
of the Legislature would not prejudice his right to
compensation as such if he held the position in the
Federal Civil Service only during periods in which the
Legislature was not in session. Sec. 33 deprives the
officer, agent or appointee of the right to be com-
pensated with respect only to the period during which
he holds another office or position of honor, trust
or profit."
In view of the foregoing, it is our further opinion '~
that a Legislator cannot receive any compensation for his ser-
vices as Legislator while he holds the position with the Federal
Governmeik referred to above.
Yours very truly
ATTORNEYGENERALOF TEXAS
By s/J.C. Davis, Jr.
J.C. Davis, Jr.
By s/John Reeves
John Reeves
JR:djm:wc
APPROVEDAUG 12, 1946
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEYGENERAL
Approved Opinion Committee By s/BWB Chairman