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