Untitled Texas Attorney General Opinion ( 1971 )

THE ATTORNEY GENERAL
OF%%XAS
.AUSTIN. TEXAR 78711
t:HUAWWHD C. MAHTIN
November 15, 1971
Honorable Jinmy Morris Opinion No. M- 997
Criminal District Attorney
Navarro County Courthouse Re: Construction of Sec. 12, 33
Coreicana, Texas 75110 and 40 of Art. XVI, Conet.
of Texas, and Art. 6252-9a,
V.C.S., relating to certain
city offices and Aeeietant
Dear Mr. Morris: Poetuaeter.
Your recent letter requesting the opinion of this office
concerning the referenced matter poses the following questions:
"1. Can a man 8erve a city as Civil Service
Conmissioner (non-salary office) for the Police
and Fire Departments and at the earnatime serve
the same city as a member of the Board of Equali-
zation (also a non-salary office)?
"2. Can a man nerve ae Civil Service Corn-
missioner for the Police and Fire Departments and
at the saxe time be Aesietant Postmaster (a federal
.
office paying a salary)?"
For purposes of this opinion we assume these offices serve a
city or town and are non-elective.
The following provisions of the Constitution of Texas are
pertinent to your inquiry:
"No . . . person holding or exercising any
office.of profit or trust, under the United
States, or either of them, . . . ehall . . .
hold or exercine any office of profit or trust
under thie State." Article XVI, Section 12.
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Honorable Jimmy Morris, page 2 (M-997)
"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 pre-
scribed in this Constitution . . . It is further
provided, _ . . if authorized by the Legislature
by general law under such restrictions and limita-
tions 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 . . . n
Article XVI, Section 33,
"No person shall hold or exercise, at the same
time, more than one Civil Office of emolument,
exceptthat of Justice of Peace, County Commissioner,
Notary Public and Postmaster . . . unless otherwise
specially provided herein." Article XVI, Section 40.
Pursuant to the authorization contained in the 1967 amend-
ment to Section 33 of Article XVI, supra. the Legielature. in
1969, enacted Article 6252~?a which p-&ides, in-full, as
follows:
"Section 1. A nonelective state officer or
emnlovee may hold other nonelective offices or
positions of honor, trust, or nrofit under this
state or the United States, if his holdins the
other offices or positions is of benefit to
the State of Texas or is required by state or
federal law, and if there is no conflict betwean
his holding the office or uoaition and his hold-
inq the oriqinal office or wsition for which the
officer or employee receives salary or compensation.
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-
Wonorable Jimmy Morris. page 3 W-997)
“Sec. 2. Before a nonelective atate officer
or employee may accept an offer to serve in other
nonelective offices or positions of honor, trust,
or profit, the officer or employee must obtain
from the governing body, or if there is no govern-
ing body, the executive head of the agency. division,
department, or institution with which he ie aeeociated
or employed, a finding that the requirements of Sec-
tion 1 of this Act have been fulfilled. The govern-
ing body or executive head shall make an official
record of the finding and of the compensation to
be received by the nonelective officer or employee
from such additional nonelective office or position
of~honor, truet, or profit including specifically
salary, bonus, per diem or other type of compensa-
tion.
"Sec. 3.
The governing body or executive head
shall promulgate rulea and regulations necessary
to
carry out the purposes of thim Act.” (Pmpha8i.s
added.)
In regard8 to your firat question, it is settled that the
municipal poaitionr therein set forth are offices of trust
under the State of Texa8. Willi v. Potts, 377 S.W.2d 622 (Tex.
Sup. 1964); Attorney Qoner8l's Opinion No. U-842 (1971).
This office hae previouely held in AttOMey General's
Opinien No. M-193 (1968) that the prohibitions contained in
Section6 12, 33 and 40 of Article XVI must all be considered
in light of the proviso that was added to Section 33 by means
of the 1967 amendment to that section. That proviso specifically
authorizes the holding, by a non-elective State officer or
employee, of more than one office or position of honor, truet,
or profit under the laws of thim State or of the United States,
provided the other office is of benefit to the State of Texas
or is required by law and there is no conflict with the original
office.
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. . -
Honorable Jimmy Morris. page 4 (M-997)
We are in accord with the reasoning of Attorney General's
Opinion No. M-193 (1968), and the authorities cited therein, and
hold that the 1967 amendment to Section 33 of Article XVI, in
addition to explicitly amending that Section, had the effect of
impliedly amending Sections 12 and 40 of that Article, and that
those Sections must. accordinglv.
- -- be construed in consonance with
that amendment, and Article 6252-9a enacted pursuant thereto.
Moreover, it has long been established that Section 40 of
Article XVI, prohibiting the holding by one person of more than
one civil office of emolument
"applies only to offices of emolument.
anolument means a pecuniary profit, gain, or
advantage; hence the same uerson mav hold two
civil offices where no nay, compensation, or
pecuniary gain attaches to one of them, provided
they are not incompatible." 47 Tex. Jur.2d 41.
Public Officers, Section 27. (Emphasis added.)
That Section is, therefore, inapplicable to your inquiry.
YOU are therefore advised that, in answer to your first
question, one person may, at the same time, hold both the offices
of Civil Service Commissioner and thatof 'memberof a Board of
Equalization, provided the findings and other requirements of
Section 2 of Article 6252-9a have been met.
Your second question involves the legality of one's boldinq
the offices of a city Civil Service Commissioner, which is non-
salaried, and that of Assistant Postmaster, a salaried federal
position.
We are of the opinion that the blanket prohibition of
Section 12 of Article XVI, forbidding the holder of a federal
office of profit or trust from holding a State office is also not
applicable to the,situation set forth in your second question,
by virtue of the addition of the 1967 proviso to Section 33 of
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I. .
Honorable Jimmy Morris, page 5 (M-997)
Article XVI and the provisions of Article 6252-9a.
Therefore, you are further advised that one person may, at
the same time, hold both the office of Civil Service Conmissioner
and the federal office of Assistant Postmaster, provided the
findings and other requirements of Section 2 of Article 6252-98
have been met.
We are also of the opinion that none of the offices at
issue in this opinion are incompatible, and that they fall within
the legally acceptable standard, which has been stated as follows:
Wffices are incompatible where their duties
are or may be inconsistent or (In) conflict, but
not where their duties are wholly unrelated, are in
no manner inconsistent and are never in conflict,
and where neither office is accountable or under the
dominion of, or subordinate to, the other, or has
any right or power to interfere with the other in
the performance of any duty." 47 Tex.Jur.Zd 43,
Public Officers, Section 20.
SUMMARY
(1) Pursuant to Sections 12, 33, and 40
of Article XVI of the Constitution of Texas,
one person may, at the same time, hold the
offices of Civil Service Coanniesionerand
member of the Board of Equalization of a town
or city, provided he has complied with the
requirements of Section 2 of Article 6252-9a,
Vernon's Civil Statutes.
(2) Pursuant to Sections 12, 33, and 40
of Article XVI of the Constitution of Texas,
one person may, at the same time, hold the office
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_. .
Honorable Jimmy Morris, page 6 W-997)
of Civil Service Cosnniesionerand the office
of Assistant Postmaster both in a town or
city, provided he has complied with the re-
quirements of Section 2 of Article 6252-98,
Vernon's Civil Statutes.
Ve truly yours,
H
General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Fred E. Davis
Lonny Zwiener
Linward Shivers
Lewis Jones
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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