Untitled Texas Attorney General Opinion ( 1968 )


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    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-
    -1433-
    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).
    -   1435   -
    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
    -1436-
    

Document Info

Docket Number: M-297

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017