Untitled Texas Attorney General Opinion

ENERAE Honorable Clifford B. Jones, Resident Texas Technologioal College Lubbock, Texas Dear Sirr Opinion Number O-4902 Re: mother State College may employ part-time music instructor who mill be employed on part-time basis by school district at same time. piehave received your letter of recent date which we quote, in part, a* follcssr "A rather heavy enrollment in our Rusio Department (Band) requires an additional part-time instructor. A simplification of the matter, in keeping with economy indi- cates the advisability of employing a part-time instructor. "The Lubbock Public Schools are confronted with 8 similar situation, and the problem could be solved if the said Public Schools and Texas Teohnological College employ a man who is available, they to use him for a portion of the time and we to use him for a portion of the time at en expense to us of (600. There would be no overlapping with respect to services~ that is to say, we would not be paying him at a time when he was engaged with their instruc- tion, and the converse of course would be true1 namely that they would not be paying him when he was engaged here. "Will you be kind enough to advise us as promptly as possible whether we have the legal right to engage this instructor upon a part-time basis as outlined?" A school teacher is not a public officer. Martin v. Fisher, 291 P. 2761 Leymel v. Johnson, 288 P. 659; 56 C. J. 382: 37 Tax. Jur. 1035; Opinions No. O-4669, No. O-4628, and O-371. Therefore, Section 40 of Article XVI, Constitution of Texas, which prohibits the holding of more than one civil office of emolument, is not applicable to the situation under aonsideration. You state that there would be no over- lapping of services, and we know of no reason why the duties of the individual as part-time instructor in the college should in any way conflict or be inoom ;;;;.",tmithhis duties as part-time instructor of music in the school 5 . Honorable Clifford B. Jones, page 2 O-4902 However, we direct your attention to the provisions of Section 33 of Article XVI, Constitution of Texas. Said section provides, in part, as followsi "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 a* 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." The construction of Section 33 was involved in Opinion No. O-2607. We quote the following from said opinion: "It is clear that this section does not seek to prohibit the serving of the State by one individual in more than one capaaity. 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 ocmpenaatiom attaohes to either place. &t if he holds an office, or is an agent or appointee, and to such place ccmpensation attaches, he may not be paid for services rendered in that oapacity 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 se&ion does and does not prohibit, we gather the general policy embodied therein. This policy seams obviously to ba that no person should receive compensation from the State for services to be rendered it, when during the time such compensation is to be earned such person, by accepting and holding another position under the State or the United States, has obligated himself to render 3ervices in ccn- nectionwith the latter position, so that he may not render full value in the first capacity for the compensation whioh 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 moneys. 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. "Ana,lysed,Article 16, Section 33, provides thatr ".An(a) offioer, (b) agent, or (c) appointee for salary or compensation is not entitled to receive payment from the accounting offioers of the State of such compensation Honorable Clifford 8. Janus, r