-_ -
Honorable Geo. Ii. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Mr. Sheppard: Opinion No. O-5123
Re: Authority to issue warrant to
James Taylor as Parliamentarian
to the Senate, Mr. Taylor holding
at the same time a position with
the Old Age Assistance Department
as AdministratSve Assistant.
Your request for an opinion upon the above subject matter is as
follows :
"During the months of January and February of this year
James Taylor was carrfed on the pay roll in the Old Age
Assistance Department as administrative assistant at a
salary of $250.00 per month, payable out of the Federal
ChEl.dren Assistance Fund. Warrants were issued,by thi.s
department pays,ble to James Taylor for each month's salary
for January and February. When the Forty-eight Legislature
convened the same Jn_Mes Taylor went on the pay roll of the
Senate as Parliamentarian and was paid a per diem of $7.50
per day out of the Contingent Expense appropriation. On
February 28 this department was informed that James Taylor
was on the pay roll of both the Senate and the Old Age
Assistance Commission, and called the same to the attenticn
of Nr. Taylor, who returned the General Revenue warrants
i.ssued to him in pay-me& for his services in the Senate
for cancellation.
"This department is also informed that Mr. Taylor has
severed his connection with the Old Age Assistance Com-
mission and is still employed by the Senate as Parliamen-
tarian. This department now has presented the Senate pay
roll for the first twelve days in March.
aj-s this department authorized to issue warrant in payment
of the amount shown on the Senate pay roll due Mr. Taylor
for per diem for the first twelve days in March?"
In connection with the letter, you have advised US personally
that Mr. Taylor severed his connection with the Old Age Assis-
tance on March 1, 1943.
Honorable Geo. H. Sheppard - page 2 O-5123
You state that Mr. Taylor "returned the General Revenue warrants
issued to him in payment for his service in the Senate for can-
cellation.ll From this we assume that he has returned for cancellation
all warrants for services in the Senate for both January and February.
Section 33 of Article XVI of the Constitution provides:
"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 prescribed in this Constitution. * * *."
It appears that Mr. Taylor did, during the months of January (from
the 12th) and February, occupy two offices or positions under the
State, in violation of the above Section, having terminated his
services with the Old Age Assistance March 1, as above stated.
Mr, Taylor has been paid for his service to the Old Age Assistance
the sum of $500,00 for the months of January and February, and no
part of that sum has been repaid to the State. This presents the
real question for our decision -- that is, whether or not he is en-
titled to receive such payment while he was holding at the same time
the position of Parliamentarian to the Senate from and after his
engagement in January.
This precise question was decided by this department in an elaborate
opinion by First Assistant Attorne General C. M. Cureton and
Assistant Attorney General, C. W. %aylor, J&e 9$ 1913. (Oiinions
Attorney General, 1912-1914, p* @73)*
That was a case involving'the right of Lieutenant-Governor, Will H.
Mayes, to accept the position of Professor of Journalism in the
State University, while at the same time holding his position as
Lieutenant-Governor of Texas*
In the course of the opinion it was said:
"It is very clear, therefore, that Mr. Mayes, so long as he
is Lieutenant-Governor, could not under the Constitution draw
pay from the State, as (1) agent, (2) officer, (3) appointee
of the State.
"As we have above endeavored to show that a professor in the
University of Texas is an appointee or in a limitedsense an
agent, therefore, Mr. Mayes could not draw a salary from the
State as professor of Journalism in the University,
'*Theconverse of the above proposition is also true, and,
therefore, Mr. Mayes, so long as he was the agent or appointee
of the State as a professor of Journalism in the University,
could not draw his pay as Lieutenant-Governor of the State, that
Honorable George H. Sheppard, - page 3, O-5123
being an office within the meaning of the Constitution0
"Therefore, should Mr. Mayes accept the position 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 or such position."
This ruling has never beendeparted from but has been adhered to
subsequent rulings of this department, and is thought by us to be
a true construction of the Constitution. (See opinion No. O-2607
herewith)
From this reasoning, it would follow that any sums paid to Mr.
Taylor for his service to the Old Age Assistance, since the date of
his employment and acceptance of the position of Parliamentarian
to the Senate has been unlawfully made, and he is therefore indebted
to the State in that sum.
Article 4350 of the Revised Civil Statutes provides tkt:
"No warrant shall be issued to any person indebted to the State,
or to his agent or assignee, until such debt is paid."
So that, it follows no warrant should in any event be issued or
paid to Mr. Taylor on account of his services to the State Senate,
or on any other account, until such sum so illegally paid to him
hasbeen repaid to the State.
Very truly yours
ATTORNEY GEIURAL OF TEXAS
s/ Ocie Speer
BY
Ocie Speer
Assistant
..;?ROVEDMARCH 1.7,1943
.F/GROVER SELLERS
FIRST ASSISTANT
!TTORNEY GENERAL