Untitled Texas Attorney General Opinion ( 1965 )

November 23, 1965
Honorable W. W. Heath, Opinion No. C-550
Chairman
Board of Regents. Re: Whether service on a %tate
The University of Texas or Federal board or com-
Austin, Texas mission by a'member of the
faculty or administration
of The University of Texas
Is in violation of the common
law rule of "lncompatIbIllty"
or in vl6latlon of either
Section 12, 33 or 40 of
Article 16 of the Texas Con-
stitution, where the Board
~of Regents of the University,
acting pursuant to certain
powers delegated to it by the
Legislature, hae.mqulred the
member to serve on the board
or comgibslon as an addltlotil
duty of his +nplojwnt by the
University and has found as a
fact that the member's service
on the board or commission 1s
compatible wlth his employme&
by the University and Is a
benefit and advantage to the
University and to the State
Dear Mr. Heath: ' of Texas.
You have requested our opinion on the above captioned
matter.
We have very recently had occasion to re-examine ihe
.appllcable Texas Constitutional provisions and case authorities
generally appllcable.to the facttil situation presented by your
request in Attorney General's O&nlon No. C-527. dated October
15, 1965, a copy of which we attach-hereto.
You advise that the boards or commlssltinsupon which the
service Is to be performed "vary widely a&to characteristics,"
that some Involve the taking of oaths, some having definite
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Honorable W. W. Heath, Page 2 Opinion No. C-550
tenure, etc., but none possess and perform sovereign power8 of
government. We do not regard any one or even several of such
characteristicsor conditions of an office or position of honor,
trust, or profit as being determinatlve..~F!utgenerally such
service as you have described would not appear to be prohibited
under the facts presented. It Is our conclusion that,,as
shown by the authorities set out In our Opinion No. C-527,
members of the faculty or administrationof the Unlverslty of
Texas may perform the service on the board or canmlas~on,
provided that.neitherthe board, commIssIon nor the members
thereof exercise sovereign powers of either the Federal or
State government.
The Texas statutes (Articles2584, et seq., V,A.C.S.)
provide In pertinent part that:
"The government of the University of
Texas shall be vested In a Board of Regents
composed of nine persons. . . . (Art. 2584) .
They shall . . . appoint a president; . . ,
appoint the professors; . . . fix their .,
respective salaries; and they shall enact
such by-laws, rules and regulations as may
be necessary for the successful management
and government of the University. . . .
(Art. 2585) The Regents shall have,power
to remove any profei3sor, .or, tutor . . .
connected with the lnstl6J u Ion when, in
their judgment, the interest of.the
University shall require it. ('Art.2586)."
Prom the foregoing statutory provisions It Is clear that
under the law, the Board of Regents has full power and
authority to employ and discharge members of the faculty and'
administrationand to prescribe the duties which each of them
shall be required to perform.
It Is also clear that since the Board of Regents exercises
delegated powers, Its rules are of the same force as would be a
like enactment of the Legislature, and Its official interpre-
tation placed upon the rule so enacted becomes a part -of the
1.iTeic.SuD.
19%): -To th=
There f a*~, 'de have :rs.ltt~allon
I:.wnlch ti:eenip?oyeeof
a state agency 1~ directed bj*zne agency$s governing board,.
acting pursumc tc tertaln powers deiegatcd to 1; by the
Legislature, to serve 01:such a bcsrd or co8mnlsslon.cxerclslng
no sovereign powers of gwernwent, as sn addItIona duty of his
position of emplojmcnt.
Under such case authorltiec as now exist In Texas, the.
Constitutionalprohlbltlonsagainst dual office holding (Art.
16, Sets. 12 and 40) were held not applicable where under the
law additional dutles were merel~yImposed on an existing
For example, In Flrot.Eaptlst Church v. City of Ft. Worth,
$E: the &au .creatingthe Fort Worth Independent School Dla-
'; r c provided that the assessment and.collectIon of the taxes
of the district.would be made by the assessor and.collector of
the taxes of the Clty.of Fort Worth. It was contended that
this violated the constitutionalprohlbltlon against one person
holding more than one civil office of emolument. in holding
that there was no violation of tileconsrltutlonr-1provision,
the Court said:
Honorable W: W. Heath, Page 4 OpltilonNo. C-550
"The Imposition of additionalduties,'
says Corpus Jurls, vol. 46 934 II29
'upon an existing office, io*be pei-fonuei
under a different title, does not constitute
the creation of a new office.' The same
authority further says: 'An office to which
the dutlks of another are annexed remains
technicallya single office; It Is not an
office under Its own name and title and
another under the name of the one whose
duties are annexed to It.' See, also,
Allen v. Fldelltv Co.. 269 Ill. 234, 109
N.E. 1035; Hat&id v: &go Count``Court,
80 W.Va. 165, 92 S.E. 245; State'v.
Powell,.109Ohio St. 383, 143 N.E. 401."
(Emphasissupplied)
This office has followed the same rationale as that :
adopted by the cotits'ln the cited cases In at~least~three'
Opinions Nos. S-94
Since the primary purpose of Section 33 of Art. 16 of the
Texas Constitutionwas to prevent dual office or position
holding, we can ljerceive of no reason why the same lnterpre-,
tatlon gfven to Art. lb,,Sets. 12 and 40 should not be .',``
analcigous.~to
aiidequally apIjllcableto Section 33 of Art. 16.
Thls office, In Attorney General Opinion No. 0-2607 (1940),
said that the object sought td be accomplishedby Section 33
was as follows:
I,
. . . that no person should receive
compensation from the State for services to
be rendered It, when during the time such
compensationIs to be earned such person,
by accepting and holding another position
under the State or the United States, has
obligated himself to render services In
connectlon.wlththe latter posltla, so
that he may not render full.value In the
first capacity for the compensationwhich
the State has agreed to ay. . '.. So con-
strued, this Section (33P seeks to avoid
even the possibility that the State may
not receive a full quid pro quo for
expenditures by way of compensationfor
services to be rendered in one capacity,
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Honorable W: W. Heath, Page 5 Opinion No. C-550
by reason of the person serving In that
capacity placing hlmself In such a position
that he may be tempted to neglect the
duties of the one place for the respon-
slbi.lltlesof the other.'
If, therefore, the service on the board or commission Is
made an addlt(ona1 duty, and Is not such as would tend to cause
the University employee to neglect his other duties and reapon-
slblllties to the University,and the Board of Regents has
entered an administrativefinding that such service on the
board or commlsslon 'Is a benefit and advantage to the Unlver-
slty and to the State of Texas, and further that such position
does not exercise any sovereign functions of government' then
our above stated conclusion with regard to the non-appllcablllty
of Section 33 in this Instance Is entirely consistent and com-
patible with the object sought to be accomplishedby that section
of the Constltutlon.
Since two offices or posltlons of honor, trust, or profit
are not being simultaneouslyheld, and the member's service on
the board or commlsslon ls related and.compatlblewith his
employment, the common iaw rule prohibiting dual office holding
on the ground of lncompatlbllltyla not violated. 47 Tex.Jur.2d
42, Public Officers, Sec. 28.
Texas cases Pollow the general rule.as to added duties and
which rule 1s succinctly stated In Ashmore v. Grbater Greenville
Sewer Dlst., 211 S.C.~n. 44 S.E.26 tQ5,173 A.L.R. ,397:
"The rule here enforced wlth'respect
to double or dual officeholdingIn vlo-
'latlonofithe constitution is not applicable
to those officers upon whcdnother duties _
relating to their respective offices are
placed by law: A common example la ex
offlclo membership upon a board or colmalSSlon
of the unlt of government which the officer
serves In his official capacity, and the
functions of the board or commission are
In accord, see Eluitt v. State, 56 Tex.Crlm. 525, 121 S.W.
168 (1909); Zasb:.andCountyv. REG'.b,288 S.W. 518 (Tex.Clv.App.
1926, error ref-). See the excellent discussion in lkCu11ers
y. Board of Com'rs. of Wake County, (N.C. 1912), 73 3.E. 61b,
Honorable W. W. Heath, Page 6 Opinion No. C-550
which cites the Texas case of Powell v. Wilson, 16 Texi 59
Judges who sit on juvenile boards perform related
~%%nal duties. Jones v. Alexander.59 S.W.2d 1083 (Corn.
Jordan v. Crudglnuton,149 Tex. 237. 231 S.W.2d
However, In order that we be not misunderstoodas to the
effect of this Opinion, it appears necessary further to point
out that we do not Interpret the above cited cases Involving
the "added duty" theory as permitting the simultaneoushold-
ing of two positions of honor, trust, or profit under the state
or federal government.
Our conclusion 1s that a position with the state or federal
: government which exercises no sovereign functions of government
and Is found to be ComDatible by the Board of ReRents Is not a
position of honor, tr&t or prokt as set out lri-Article 16,
Sec. ,33of the Texas Constitution.
SUMMARY
Service by-a member of the faculty
or
- administration of the Unlvetisltyof
Texas on a state or feder'alboard or
commission, not,exercislngsovereign
powers of either the federal or stati
government violates neither the common
law rule of incompatlbllltynor Sections
12, 33 or 43 of Section 16 of the Con-
stitution of Texas. Where the University
Board.of Regents- acting pursuant to
certain powers delegated to It by the
Legislature,has promulgated rules and
regulations requiring such service, and
correctly finds that the service is
compatible with the employment and a
benefit to the University of Texas and
.to the state, and that such position does not
exercise any sovereign functions of government,
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Honorable W. W. Heath, Page 7 Opinion No. c-550
the member may so serve without
violating such sections of the Con-
stitutlon and may be validly paid out
of the State Treasury his salary or
compensationas an employee of the.
University.
Yours very truly,
W&3GONER CARR
Attorney General.of Texas
KBT/'dl:fb
APPROVED:
OPINION COMMITTEE
. W. V. Geppert, Chairman
. H. Grady Chandler
.Robert'Flowera
Roger l$ler
Arthur Sandlin
Marietta .Payne.
"..‘APPROVEDFOR TRJ3A'iTORNEyGENERAL
BY: T. B. Wright
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