Untitled Texas Attorney General Opinion ( 1964 )

THE ATTORNEY GENERAL OF TEXAS C:n*wFORD G. RL4HTIiw AUSTX~,TEXAR 78711 Ax-rORNYEY GENERA& September 8, 1964 Honorable Byron Tunnel1 Opinion No. C-307 Speaker House of Representatives Re! Compensation of a member of Austin, Texas the House of Representatives who has a contractual agree- ment with the High Plains Underground Water Conser~a~ Dear Mr. Tunnell: tion District No. 1. ; Your request for an opinion reads as follows: "I request that you advise me whether or n~otI can legally authorize expenditures of monies to and for a member of the House of Representatives under the facts set out. 'The Honorable H. G. Wells of Tulia, Texas, Representative, District 89, consist- ing of Briscoe, Hale, Swisher and Ployd Coven- ties, entered into a contract with the High Plains Underground Water Conservation District No. 1, to render legal services to the District. A copy of the contract is attached hereto for your information andcconslderation. "At that time, September 30, 1963, in an abundance of caution, Representative.Wells re- quested that he be taken off the monthly Hou~se of Representative Member's payroll and since that time he has not received any compensation as a member of the House of Representatives. "I request that you advise me: "1. Does the relationship between Representa- tive Wells and the High Plains Underground Water Conservation District No. 1, as evi- denced by the contract preclude him from receiving the Constitutional salary as a member of the House of Representatives? "2. If the answer to question no. 1 is in the negative, can I now authorize Representative -1464- Hon. Byron Tunnell,,page 2 (C-307) Wells to be paid for the months he has not received such salary.and-if so, can he be paid in a lump sum?" We have carefully examined the contractual agreement enter- ed into by and between the High Plains Underground Water Conser- vation District No. 1 and Representative Wells. Under this agree- ment, Representative Wells became an independent contractor with -the Conservation District and cannot be considered an employee of the District nor an officer of the District. Therefore, Section 40 of Article XVI of the Constitution of Texas prohibiting a person from holding or exercising at the same time more than one ci~vilof- fice of emolument is not applicable to Representative Wells, under the facts submitted. Likewise, Section 33 of Article XVI of the Constitution of Texas prohibiting the Accounting Officers of this State from paying a 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 this State or the United States, ,isnot applicable. While Attorney General's Opinion C-221 (1964) .held that a member of the Legislature~is not eligible to receive his salary as a member of the Legislature while he is employed by a govern- mental agency of the State, such holding is not applicable to the facts submitted in your request, for the reason that the agreement between the Conservation District and Representative Wells creates the relationship of independent contractor rather than constitut- ing a contract of employment. In view of the foregoing, you are advised in answer to ques- tion no. 1 that the relationship between Representative Wells and the High Flains Underground Water Conservation District No. 1 does not preclude Representative Wells from receiving the constitutional salary as a member of the House of Representatives. In answer to your second question, you are advised that since his constitutional salary for the months he has not received is now due and payable, such salary may be paid in a lump sum. '_r SUMMARY An agreement between an agency of the State and a member of the Legislature which creates the relationship of an independent contractor, rather than constituting a contract of employment, does not violate the provisions of Sections 33 or &O of Article XVI of the Constitution of Texas and, there- fore does not preclude the payment of -1465- Hon. Byron Tunn~ell,page 3 (C-307) the constitutional salary to such member of the Legislature. YOL:.TSvery truly, WAGGONER CARR Attorney General ‘de+- Assistant JR:ms APPROVED: OPINION COMMITTEE W. V. Geppert,~Cha~irman Robert Smith Brady Coleman Roy Johnson .?~APPROVE3 FOR THE ATTORNEY GENERAL By: Roger Tyler - 1466-