,
THZ ATTORNEY
OBNBlAL
OF TEXAS
Austin, Texas
Honorable YllllslnM. Whyburn, President
Texas Teehnologloal College
Lubbock, Texan
DearXr.Whyburnr Opinion No. O-6232
Rs: Whether or not the Presl-
dent ot the Texas Techno-
logleal College may ale0
serve as Chief of the
Operations Analysie Sea-
tlon (U.S.) and Inalden-
tal que8tlon8.
owebeg to aaknowledge receipt of your letter aa
f011ou81
."I,should like to request a rul+ on the
foli&w%ng,P*tter.
'On S8pt8mb8r Zlth, 1944 I amum& my duties
M Presldont of the Texae Te&nologlaal College
and uu plaoed on the,offialal payroll of that
in8titution. Prior to that time I held an ex-
oepted appolntunt with the IS.3. War Department
U an 8x@ert wmfmltant with speoIfIa aanlgrnnent
a8 Chlei, Operation8AnalylrlsSMtlon, Head-
quartern, Third Mr Porce, TEapa. Florida: Can-
pansatlon ?or thlr earvIce wae on a baa18 of $25.00
peLetifor eaah day on which aatual servlae WM
The haraoter of the remlees rendered
unde+ thilr appolntnumt and the diffioultp of'find-
ing a suitable replamnent for me makes neaeerrary
the oontlnuation of the above named War Department
appointmentuntil suah a t&me as Its dIsaontInua-
tion Is Indlaated by the Air Foroes.
*It Is expeated that be@nnIng with the month
of Ootober there will be several days out of each
month when I aan be away from my duties at this
uollege for servloe with the Third AU? Forae. Par
Such days It i8 proper that I rWeiVe COC4phlratiOn
Honorable Wlllima X. Whyburn - Page 2
from federal fund8 and rooordinglythat I
not receive oollega funda. I am aware of
the Texas ConatltutlonalprovI8lon aoverlng
this eituation. It Is my lrtrongdesire that
the portion of ay State salary thus released
be added to the fund8 of the Texas Teahnolog-
lcal College. Slnae oertelnof my dutIe,shere
will need to ti perfonued by othem, and any
saarlflae of 8erviae due to my ab8enae will be
made by the College itself, It 18 my hope that
the adjustment oan be made through my making a
refund to the~College of the exact amount paid
to me.as college 8alary for the daye when I am
serving the War Department. Ray I requeet a
ru&y from your offioe on the legality of euoh
xn order to alarify a8 muoh as pOS8i-
ble thi nature ot mu amoIntment with the War
Department,1 IDIenim&ag eert8in oonfldentlal
doawmnt8whlah I hope c\anb8 return8d ror my
use later."
Sactim 40 or Artfale %VI of the Constitutioncon-
taln8 the miairyt
"#o parmn +a.ll hold or exerdse, at the
881DLItime, mora tnan ona CrlvIloffice of ealolu-
ment, except that of Jwtlc8 OS the Peaoe, County
Ccwlssloner, Rotary Publie end Poetmuter, offi-
cer OS tha National Ouard, the National Quard Re-
caex!ve,and the Offleers Re8erve Corps o? the United
States and enlisted men of the National Ouard, the
National Guard Rmerve, and the OrguriaedReservea
of the United Staten, ,@ndretired ol'fioersof the
United States Anay, Navy, andUrIne Oorpa and re-
tired Warrant 0??108r8, and rt#tfrcrdttnli8t6dn8n
of the United Stator Amy, Navy, and Rarlne Corps,
unless otherwise epeolallyprovidedherein. * * l)"
Se&Ion 33 OS the seme Artlole dealeresr
"The aaoounting offiaem4 of this State ahall
neither draw nor pay a warrant upon the trea8uzv
In Savor OS anfper8on, for salaryor aompen8atIon
as agent, oiilaer or appointee,who holds at the
mne time any other offloe or position of honor,
trust, or profit, under thla State or the United
zttt:"(J,,,
exoept am presorlbed In this ConatItutIon.
Honorable William U. Whyburn - Page 3
It would appear that the position of Chief,
Operations Analysis Section, with the U. 8. War Uepart-
ment Is an offiae of emolument. The appointment18 made
under Section 9 of the ~llltary AppropriationAct of 15444
for an Indefinite period. The appointee is required to
take an oath of office, and enter upon duties before any
psyaent of salary can be made. The salary stipulated is
$25.00 per biem. Moreover, the $utles of such Chief are
defined by law.
These faute taken from the documents accompanying
your letter appear to present the Indicla of an office as
cmntra-dlstlngulshedfrcm a mere position of employment.
But whether suoh position be an offlao, we need not to de-
cide, since it alearly appears~that the same is a *position
of honor and trust" under the United States, withIn the
meaning of Section 33 of the Constitutionabove quoted.
This being true, it is clear the %nstltut1on for-
bids the drawing orpaymento? anywam?antuponthetreosurg
in favor o? yourself as President of the Texas Technologiti
College lshileyou eontlnue to hold the position of Chle?,
Operations Analysl.8 Se&ion.
~l!he:e?fecto? Seotlon 33 is to:gorbId paymeet out
of the khte Treasury in such a&se, rather than to~imply a
vaoatlon of the office or position.
Themany rulings by this deprrtamt hark baak to
an opinion by Mrst Assistant Attorney Oeneral Cureton,
later &Ie? Justice; holdln$ that LIeutenant Governor -8s
could not be paid his 6alary while he held at the 6ame time
the position of teachor of (OpMOn8 o? Attor-
ney Cieneral,1.912-1914,p.
The following resent opinions by this department
till1show the frequent reautinae o? the question, and will
also illustrate the respeutive faatual situations lnvolvedr
No. O- (atate Health Offloer and Speolrl Agent
Mau of Cemus f
5"
No. O-1421 (State Q??iaer and Deputy Game Warden
of U. 8. without pay);
No. o-2388-~ (*ployee Livestoak Sanitary Camala-
81On and employee Predatory Axliasal
DiVi8iOn Of the Bureau
of Biologleal MvI8lon of the U. S.)I
No. O-2607 (Physiaianemployee of two State In-
stltutlons);
Honorable Wllllam N. Whyburn - Page 4
No. O-2701 (Old Age Pension Investigatorsnd
member Board of Trustees of IndependentSahool District);
No. O-2769 (State employee snd National Ouards-
man holding an offiae or position of trust in the active
seTviceI;
No. O-3061 (An opthtiologist employee of State
,eleemos axy InstltutIonand also of Departnent Public
Welfare"r"
1
No. O-3788 (Mreator of DIvlsion Department of
Health and part-time employee of Division of Department
of Rducatlon);
No. O-3693 Dlstrlet Attorney and inductee in
the Army of the U. S. I;
No. O-3542 (State Representative'and loyee of
-5 ;
Federal Government as printer at Fort San Houston
No. O-3335 State employee and dra?tee under
Selective service Act I;
No. O-2991 (X8mber-d-o? Mreetors, Texas
'%ille$e of Arts and Industries and County Superintendent
of Public Instruotlon):
No. O-3045 (Inwstlgtor for State Board of
Wedlcal RxawIners and spealal Ranger):
No. O-4902 (Baployeeof State-owned oollege and
employee of a sahool district part-time basis)~
No. O-4908 Rnployee'teacherof A. & R. College
and City CcmmlsslonerIf
No. O-4562 (Head of Department of Oenetlcs,
A. Q n. College and member State Seed and Plsnt Roard)i
No. O-4433 (Teachersof publla rchool system of
Lubbock County and praotlae teachers for Texas Technological
Oollege);
No. O-4 3 (State Representativeand Induutee in
Anay of the U. S.Y-j
;
No. O-5107 (DistrictJudge snd Public Wember
Regional War Labor Board):
-
HonorableWill.iam
N. Whyburn- page 5
to the Senate and
No. O-5123 (ParlIementarlan
mployee of Old 0 AssistanceMvision, stat0 Departaent
7 f
of Pub110Welfare
No. O-5157 o&emberBoard of Re@ntS Texas State
Teacher8Collegesand employee.ofan independentsahool
distrlot);
No. O-%3 (Pre8Ident,Collegeof Nine8 and Metal-
lurgy and PublicPanel Member of ReglonalWar Labor Roard)~
No. O-5317 (StateRepresentative
and employeeof
a State Department);
No. O-5369 (Mreotor CountyHealth Unit and part-
time MedicalExaminerfor hospitalestablishedby State
Departmentof Health in cooperationwith the Federal
4loverment):
No. O-5281 (Desnof the ilhitnrsity
of Texas Dental
School and member State Board of Nealth)j
No. O-5525 (Gonsultantto State.HeilthOfficer
and teauherin State Nedlcal School)$
No. O-5608 (IDrployee
atate D8partmentof i@rI-
cultureandmember PpMcRoll Worm Cami8sion).
Our ~oml~sIon In this case 18 supported by the
abow opinions.
The dooments mentionedby you am herewith
retuned.
Very truly youm,
ATTORNX OWHRAL 08 TEXAS
Ilp /a/ g;z zet
Assistant
OS-m
Nnclosure