Untitled Texas Attorney General Opinion ( 1968 )


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  • Hon. Charles R. Barden       Opinion No. M-193
    Executive Secretary
    Texas Air Control Board      Re:   Construction of the 1967
    1100 West 49th St.                 Amendment to Section 33
    Austin, Texas 78756                of Article XVI of the
    Constitution of Texas.
    Dear Mr.   Barden:'
    Your request for an opinion on the above subject
    matter asks the following questions:
    "(1) May the accounting officers of this
    State draw or pay a warrant upon the State
    Treasury in favor of an appointed member of
    the Texas Air Control Board for per diem and
    travel and other necessary expenses while in
    the performance of official duty for the Texas
    Air Control Board, if at the same time the
    member is serving on the planning and advisory
    group of the National Center for Air Pollu-
    tion Control, as explained above, for which
    service he receives from the Federal govern-
    ment a consulting fee and payment of travel
    and other necessary expenses incurred in
    his work with the NCAPC planning and advis-
    ory group?
    ,I.   .   .
    ,   "(5) May the accounting officers of
    this State draw or pay a warrant upon the
    State Treasury in favor of an appointed
    member of the Texas Air Control Board for
    per diem and travel and other necessary
    expenses while in the performance of of-
    ficial duty for the Texas Air Control
    Board, if at the same time the member
    is serving on the faculty of a State-
    supported university in,a program which
    is devoted in part to the scientific
    and engineering aspects of various en-
    vironmental health problems, including
    -919-
    Hon. Charles R. Barden, page 2, (M-193)
    air pollution, as explained above, for
    which service he receives from the uni-
    versity a salary, per diem,-or other
    remuneration for his time, and payment
    of travel and other necessary expenses
    incurred in his work for the university?
    91
    . . . II
    Prior to the 1967 amendment, Section 33 of Ar-
    ticle XVI of the Constitution of Texas provided in part:
    "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, or
    the United States except as prescribed
    in this Constitution."
    The 1967 amendment to Section 33 of Article XVI
    added the following provision:
    "It is further provided, until Sep-
    tember 1, 1969, and thereafter only 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 posi-
    .tions are of benefit to the State of
    Texas or are required by State or fed-
    eral law, and there is no conflict with
    the original office or .position for which
    he receives salary or compensation. No
    member of the Legislature of this State
    may hold any other office or position of
    profit under this state, 01 the United
    States."
    In construing a constitutional amendment the courts
    will look to the evils intended to be remedied and,the good
    hed. Markowsky v. Newman, 
    134 Tex. 44D
    ,.
    to be accomplis:
    136'S.W.2d 808 (1940); Hamiltoriv. Davis, 217 S.W; 431'
    -920.
    Iion.Charles R. Barden, page 3, (M-193)
    (Tex.Civ.App. 1920, error ref.). Furthermore, different
    sections, amendments or provisions of the Constitution which
    relate to the same subject matter should be construed to-
    gether and considered in light of each other. Purcell v.
    Ia:;:,   314 S.W.Zd 283 (1958); Collingsworth County v.
    40 S.W.Zd 13 (1931). In Collingsworth County v.
    
    Aflred; supra
    , the court stated in 40 S.N.Zd 15:
    "The Constitution must be read as a
    whole, and all amendments thereto must be
    considered as if every part had been adopt-
    ed at the same time and as one instrument,
    and effect must be given to each part of
    each clause, explained and qualified by
    every other part. Gilbert v. Kobbe, 
    70 N.Y. 361
    . Different sections, amendments,
    or provisions of a Constitution which re-
    late to the same subject-mattershould
    be construed together and considered in
    the light of each other. Dullam v. Willson,
    
    53 Mich. 392
    , 
    19 N.M. 112
    , 51 Am.Rep. 128;
    State v. Astoria, 
    79 Or. 1
    , 
    154 P. 399
    ."
    In Markowsky v. 
    Newman, supra
    , the court stated:
    "Anotherrule of construction is     ,,,
    generally, it may be said, that in deter-
    mining the meaning, intent and purpose
    of a constitutional provision the historI
    of the times out of which it grew and to
    which it may be rationally supposed to
    have direct relationship, the evils in-
    tended to be remedied and the good to
    be accomplished, are proper subjects
    of inquiry. Travelers Insurance Com-
    pany v. Marshall, 76 S.W.Zd 1007."
    Therefore, the amendment to Section 33 of Article XVI should
    be considered in light of not only the prohibition previous-
    ly contained in Section 33, but also the prohibition con-
    tained in Sections 12 and 40 of Article XVI relating to
    the same subject matter. Section 12 of Article XVI of the
    Constitution of Texas provides:
    "NO member of Congress, nor person hold-
    ing or exercising any office of profit or trust,
    under the United States, oreeither of them, or
    under any foreign power, shall be eligible as.
    c
    1,           -921-
    Hon. Charles R. Barden, page 4, (M-193)
    a member of the Legislature, or hold or exer-
    cise any office of profit or trust under this
    State."
    Section 40 of Article XVI of the Constitution
    of Texas provides in part:
    "No person shall hold or exercise, at
    the same time, more than one Civil Office of
    emolument, . . . .)I
    Thus, while Sections 12, 33 and 40 prohibit cer-
    tain dual office holding in Texas, the 1967 amendment to
    Section ,33of Article XVI specifically authorized the hold-
    ing of more than one office or position of honor, trust
    or profit under.this State or the United States. While
    the amendment has not been construed by the courts of this
    State, we are of the opinion that the rules of construc-
    tion quoted above should be applied.' Applying the fore-
    .
    going. it is noted that the amendment specifically autho-
    rizes until September 1, 1969, a non-elective state officer
    or employee to hold other non-elective offices or positions
    of honor, trust or profit under.this State or the United
    States if such'other offices or positions are of benefit
    ’       to the State and there is no conflict with the original
    office or position; After September 1, 1969, such non-
    elective state officer or employee may hold other offices
    or positions only if authorized by the legislature by gen-
    eral law under such restrictions and limitations as the
    legislature may prescribe.
    We find no conflict in the duties of a member
    of the Texas Air Control Board and a member of the plan-
    ning and advisory group of the National Center for Air Pol-
    lution Control as outlined in your letter, nor do we find
    any conflict in the duties of the members of the Texas Air
    Control Board and those duties of the faculty of a state-
    supported university in a program outlined in your request.
    Therefore, you are advised that the Comptroller of Public
    Accounts may issue warrants upon the State treasury in favor
    of an appointed member of the Texas Air Control Board for
    per diem and travel and other necessary expenses while in
    the performance of official duties for the Texas Air Con-
    trol Board even though such member is serving on the plan-
    ning and advisory group.of the National Center for Air Pol-
    lution Control, or is serving as:a faculty member in a state-
    supported university. Furthermore, neither Sections 12,
    33 or 40 prohibit a member of the Texas Air Control Board
    -922-
    .
    Hon. Charles S. Barden, page 5, (M-193)
    from serving either on the planning and advisory group of
    the National Center for Air Pollution Control or as a mem-
    ber of the faculty of a state-supported university.
    I!ehave not quoted your remaining questions as
    they were predicated upon a negative answer to questions
    no. 1 and no. 5.
    SUMMARY
    -------
    The 1967 amendment to Section 33 of Ar-
    ticle XVI of the Constitution of Texas until
    September 1, 1969, specifically permits a
    non-elective state officer or employee to
    hold other non-elective offices or positions
    of honor, trust or profit under this State
    or the United States. Neither Sections 12,
    33 or 40 of Article XVI now prohibits a mem-
    ber of the Texas Air Control Board from serv-
    ing on a advisory group of the National Cen-
    ter for Air Pollution Control or as a fac-
    ulty member of a state-supported universi-
    ty.
    V*    truly yours,
    A@orney   General of Texas
    Prepared by John Reeves
    Assistant Attorney General
    APPROVED:
    .,OPINION COMMITTEE
    Hawthorne Phillips, Chairman
    Kerns Taylor, Co-Chairman
    W. V. Geppert
    John Fainter
    Marietta Payne
    Jack Sparks
    STAFF LEGAL ASSISTANT
    A. J. CARUBBI, JR.
    _   923
    -
    

Document Info

Docket Number: M-193

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017