Untitled Texas Attorney General Opinion ( 1971 )

Hon. Joe Resweber Opinion No. M-842
County Attorney
Harris County Courthouse Re: Construction of Sections
Houston, Texas 77002 33 and 40 of Article XVI,
Constitution of Texas;
Dear Mr. Resweber:
Your request for our opinion concerning the captioned
matter atiksthe following question:
“Can the Judge of Court of Domestic Re-
lations, receiving ealary from Harris County
hold a position as a board,,memberof a State
University simultaneously?
Your question concerns appointment to the Board of Directors of
Texas Southern University.
Section 40 of Article XVI, Constitution of Texas, pro-
vides In part as followsi
‘NO person shall hold or exercise, at the
same time,
more than one Civil Office of emolu-
ment, . . .”
Section 33 of Article XVI, Constitution of Texas, pro-
vides in part as followsr
“The Accounting Officers of this State shall
neither draw nor pay a warrant upon the Treasury
In favor of any pereon, 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
State;, except as prescribed In this Constitution.
. . .
In Jordan v. Crudglngton, 149 Tex. 237, 231 S.W.2d 641
(1950), the Supreme Court held that a court of domestic relations
Is neither a district court nor a county court, but is another
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Hon. Joe Resweber, page 2 (M-842)
court created by the Legislature pursuant to the authority
granted in Section 1 of Article V of the Constitution of Texas.
Previously In Willis v. Potts, 377 S.W.2d 622 (Tex.Sup. 1964),
the Supreme Court had i?uiiat a member of a city council, who
received a per diem, held an office under this State within the
meaning of Section 19 f Article III of the Constitution of Texas.
We have concluded thatpthe same construction is applicable to the
provisions of Section 40 of Article XVI of the Constitution of
Texas. It Is therefore our opinion that the office of judge of
a court of domestic relations Is an office of emolument within
the meaning of Section 40 of Article XVI of the Constitution of
Texas.
The government of Texas Southern University is vested
In a board of directors created by the provisions of Article
2643b, Vernon's Civil Statutes. Section 4 provides:
"Sec. 4. The reasonable expenses Incurred by
the members of the Board In the discharge of their
duties shall be paid from any available funds of
the lnstltutlon. All expenditures shall be made
by order of the Board, and the same shall be paid
on warrants to be Issued by the Comptroller of
Public Accounts of the State of Texas baaed on
vouchers to be approved by the chairman of the
Board or some other officer of the University to
be designated by him In writing to the Comptroller,
and to be countersigned by the secretary of the
Board or by some other officer of the University
to be deslgnated,,bysaid secretary In writing to
the Comptroller.
It Is noted by the foregoing provisions that members
of the Board of Directors of Texas Southern University do not
receive any salary or compensation for the discharge of their
duties but are entitled to reasonable expenses Incurred. There-
fore, in our opinion, a member of the Board, while holding a
State office, Is not holding an office of emolument. See State
ex rel Brennan v. Martin, 51 S.W.W 815 (Tex.Civ.App. 1932‘))erein
the court stated:
"The constitutional provision does not, per
se and as a matter of law, prohibit a person from
holding the office of school trustee while also
holding another public office, for the simple
reason that provision applies, arbitrarily, only
to 'civil office(s) of emolument,' whereas the
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..
Hon. Joe Resweber, page 3 (M-842)
office of trustee of the Laredo Independent
School District is not one of 'emolument,' since
the holders thereof 'shall serve without com-
pensation.' Article 2775, R.S. 1925 (Citing
authorities)."
Our opinion Is tha$ Section 40 of Article XVI of the
Constitution of Texas Is not applicable to the office of a member
of the Board of Trustees of Texas Southern University for the
reason that such office Is not an office of emolument.
The provisions of Section 33 of Article XVI, Constitution
of Texas, above quoted, prohibit the issuance of any warrant 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 the State.
No salary or compensation la paid by a warrant upon the
State Treasury to judges of courts of domestic relations and the
pre-existing law establishing a Borvd of Directors of Texas
Southern University does notautkriz:?, the issuance of any
warrant 'for salary or compensation" to Its members. Consequently,
Section 33 of Article XVI of the Constitution is not applicable to
members of such offices.
We are unable to find any conflict between the duties
of a judge of a domestic relations court and the duties of a
member of the Board of Directors of Texas Southern University.
Therefore, It Is our opinion that the duties of the two offices
are not Incompatible.
You are advised that a judge of the Harris County Court
of Domestic Relations No. 1 may hold simultaneously the ofrice as
a member of the Board of Directors of Texas Southern University.
SUMMARY
A judge of a court of'domestic relations may
hold at the same time the office of member of the
Board of Directors of Texas Southern University,
since members of such Board do not receive any
salary or compensation and the duties of the two
offices are not Incompatible.
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Hon. Joe Resweber, page 4 (M-,842)
: Very truly yours,
CRAWFORD C. MARTIN
Attorney General of Texas
BY&/~%%!&
Flrst Assistant
Prepared,by John Reeves
Assistant Attorney Qeneral
APPROVED:
OPINION COMMI!ITEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sally Phillips
S. J. Aronson
Roland Allen
James Swearingen
MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
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