Untitled Texas Attorney General Opinion ( 1968 )

.
THE .~TTOKBTEY GESERAZ.
OF %%XAS
Honorable John Lawhon Opinion No. M-297
County Attorney
Denton County Re: May a county attorney serve
Denton, Texas as a college professor at a
state university under the
provisions of Sections 33
and 40 of Article XVI, Texas
.~ Constitution, and related
Dear Mr. Lawhon: statutes.
You have recently requested an opinion from this
office regarding the above stated matter, we quote from your
letter as follows:
"QUESTION
"Can the County Attorney of Denton County
serve as professor for one class at a state
university?
"BRIEF ON THE LAW
"A new case, Tllley v. Rogers, 405 S.W.2d
220, 224 (Tex.CIv.App. 1966,wr.ref.,n.r.e.),
directly answers this question. There is no
later case In olnt. The Tilley case construes
Art. 1.6, Sec.fl0 of the Texas Constitution,
which article restricts a person from serving
In more than one civil office of emolument.
"The office of County Attorney Is such a
civil office; 'however, a professorship Is not
an office. A teacher or college professor is
not an office within the meaning of the constl-
tutlonal provlslons of Art. lb, S . 40 of the
Constitution of the State of Texa? He Is an
employee and the prohibition of the constitu-
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Honorable John Lawhon, page 2 (M-297)
tional provision of Art. 16, Sec. 40 is in
R 405 s
s%-F*’ 224 T(~ex’“cI:::Ap~pef``6~“``“XS.,n.
l1
“CONCLUSION
“The answer to this question Is that such
County Attorney can legally serve a8 profeaeor
for a class at a state university.”
Section 40 of Article XVI, Vernon’s Texas Constl-
tution, la quoted in part a8 follows:
“No person shall hold or exercise, at the
same time, more than one civil office of emolu-
ment. . . .‘I (ephasisam
We have reviewed the case of Tllley v.
S.W.2d 220 (Tex.CIv.App. 1966, err.reS.n.r.e.),
your analysis of that case. You are also referred to Attorney
General Opinion V-689 (1948) which makes It clear that it has long
been the position of the Attorney Qeneral that a college pro-
fessor does not hold “a civil office of emolument.” The court
in the Tllley case, suora, was concerned on1 with the hold-
ing of more than one !‘oSS Ice” undersection -3 0 of Article XVI.
However, your question also necessitates an analysis
of Section 33 of Article XVI, Vernon’s Texas Constitution,
which Is quoted, In part, as Scillowa:
“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 OS honor, trust, or profit under ‘this
Statel except as prescribed in this Constltutlbn.
. . .
Without question, a county ‘attorney holds an “office
.of honor, trust or profit under this State.” Article 329
Vernon’s Civil Statutes; Attorney Ueneral Opinion No.
- 1,,434 -
Honorable John Lawhon, page 3 (M-297)
Likewise, this office has held many times previously
that a college professor of a state college holds a position
of honor, trust, or profit under this State, In Attorney
General Opinions Nos. C-527 (1965) and c-528 (1965), it was
held that there was no material legal distinction between
"office of honor or trust" or "position of honor or trust."
However, there Is a material distinction between "office of
profit" and "position of profit." While the former term
means that the holder exercises sovereign governmental Sunc-
tlons, the latter term differs in that Its duties are not
necessarily so characterized and embraces both officers and
employees. A teacher holds a "position" of profit. 33 words
and Phrases 53, 55, "Position", and 1968 Pocket Part, pp g-11,
and cases there cited. See Attorney General Opinion V-689 (1948),
and the many prior opinions cited therein, that a school teacher
falls wlthln the prohibited term, "position of honor, trust, or
profit."
Therefore, a county attorney who Is also teaching
at a state supported college would be holding two positions
OS honor, trust or profit and thus 1s subject to the constltu-
tlonal provisions of Section 33, Article XVI.
Consequently, the State Comptroller would be pro-
hibited In paying the salary or compensation of an Individual
who Is presently a county attorney and also a professor at a
state college or university. However, the County Attorney Is
not prohibited from serving as a professor In the state col-
lege without compensation, and he may also draw compensation
out of funds, the sources of which are not from the State
Treasury reaulrlna the accountlna officers of this Stat'e to
draw or-pa -a warFant See Attorney General Opinion Numbers
V-689 (I&) and also-see C-547 (1965).
The people, during 1967, saw fit to amend Section
33 of Article XVI so as to provide that a non-elective state
officer or employee may hold other positions of honor, trust
or profit under this State or the United States under certain
specified conditions, but elected officers or position holders
are still subject to the prohibitions discussed herein. See
Attorney General Opinion No. M-193 (1968).
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Honorable John Lawhon, page 4 (M-297)
SUMMARY
A college professor at a state university
Is not a civil office of emolument under Section
40 of Article XVI, Constitution of Texas.
v. Rogers, 405 S.W.2d 220 (Tex.CIv.App. 19
reS.n.r.e.) and the County Attorney may serve as a
college professor of a state college, but without
compensation from the State Treasury.
The State Comptroller is prohibited by Section
33 of Article XVI, Vernon's Texas Constitution,
from paying the salary or compensation of a college
professor who Is also a county attorney.
truly yours,
Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Bill Corbusler
Pat Bailey
Arthur Sandlln
Robert Flowers
A. J. CARUBBI, JR.
Executive Assistant
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