Untitled Texas Attorney General Opinion ( 1972 )

Hon. Bill T. Swanson, Chairman Opinion No. M- 1194
Oil, Gas, and Mining Committee
House of Representatives Re: Whether office holders,
State Capitol Building such as judges~,may
Austin, Texas 78711 simultaneously hold
office on the boards
of regents of State
Dear Representative Swanson: institutions.
Your recent letter requesting the opinion of this
office concerning the referenced matter states as follows.:
"As chairman of the Oil and Gas Committee,
I respectfully request an opinion from your
office in regard to office holders, such as
judges, also holding office on the Board of
Regents of State institutions. I personally
feel that this is in conflict with the State
constitution, however, your office may clarify
same. ”
Section 33 of Article XVI of the Constitution of
Texas, as amended in 1967, provides, in pertinent 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, except as prescribed in this Con-
stitution. . . It is further provided, until
September 1, 1969, and thereafter only if
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Won. Bill T. Swanson, page 2, (M-1194)
authorized by the Legislature by general law
under such restrictions and limitations as the
Legislature may prescribe, that a non-elective
State officer or employee may hold other non-
elective offices or positions of honor, trust,
or profit under this State or the United States,
if the other offices or positions are of benefit
to the State of Texas or are required by State
or federal law, and there is no conflict with
the original office or position for which he
receives salary or compensation. . . .. (emphasis
added.)
Pursuant to the authorization contained in Section
33, as amended, the Legislature enacted Article 6252-9a,
Vernon's Civil Statutes, which, in substance, allows a non-
elective State officer to hold another non-elective State or
federal office when such dual office holding is of benefit
to the State of Texas and is not incompatible with the orig-
inal office held.
Section 40 of Article XVI of the Constitution of
Texas provides, in pertinent part, that:
"NO person shall hold or exercise at the
same time, more than one Civil Office of emolu-
ment. . . .(I
For purposes of your opinion request, we are assuming
that the "judges" to whom you refer are elected officials and
that they are paid their salaries by the State of Texas. We
further assume that the members of the boards of regents to
whom you refer receive no compensation from the State for
their services as regents.
In accordance with the hypothetical set of facts
set forth in the preceding paragraph, Section 40, supra, is
not applicable to your opinion request, inasmuch as a non-
salaried regent does not hold a "civil office of emolument"
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Hon. Bill T. Swanson;page?, .(M-119.4):::
within the meaning of that Section. See Whithead v. Julian,
476 S.W.2d 844 (Tex.Sup.1972); Attorney General% Opinions
NOS. M-409 (1969) and and M-042 (1971).
Further, neither the proviso to the 1967 amendment
to Section 33, supra, nor Article 6252-9a is applicable to
your request, as both of those provisions apply.only to one
holding two non-elective positions; we reiterate that we are
assuming that the "judges" to whom you refer hold elective
office.
Thus, the only constitutional provision that remains
apposite to your request is the first sentence of Section 33,
quoted supra. In accordance with that provision, you are
advised'that, in the event the elected, State-salaried judges
to whom you refer are appointed to and accept a non-salaried
position as members of the boards of regents of State institu-
tions, they would not be entitled to receive any State compen-
sation for the judicial positions they now hold. Bovett v.
Calvert, 467 S.W.2d 205 (Tex.Civ.App. 1971, error ref. n.r.e.)
SUMMARY
-------
(1) Pursuant to Section 40 of Article XVI
of the Constitution of Texas, the position of a
non-salaried member of the board of regents of a
State institution is not a "civil office of
emolument" within the meaning of that Section.
(2) Pursuant to Section 33 of Article XVI
of the Constitution of Texas, an elected, State-
salaried judge may also ho.ldthe non-salaried
office of regent of a State-supported institution,
but if so, he may receive no compensation from
the State for his position as judge.
C. MARTIN
ney General of Texas
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Hon. Bill T. Swanson, page 4, W-1194)
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Roger Tyler .
Jack Sparks
James Broadhurst
Houghton Brownlee
SAMUELD.MCDANIEL
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WHITE
First Assistant
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