Untitled Texas Attorney General Opinion ( 1965 )

October 18; 1965..
Honorab~s:``~.rWlnters,.
Commissioner-
Statet~p~ment:.of"Publlc Welfare
Austin; T&as2
Cplnlon No,.. C+2&
Re:.Is.theState.,Depart&entof
Public Welfare‘authorized.
,t0 se&up- a:Di%y.:Ckre
Advlsory;C?immlttee~.-conaltitlhg
of.r@presentative``:of"'other~
State~.D&partiaents-~or:~Agerx9.es~
other”
and'.reprieaent&tiires'-ofl
profess~ona~'and'cl~lcgrm``
fo``.~the~putpose~:of'~comply``.
tith.the?federdlzequ~rem6nt~
and.agreement:~wh%hI& tiii?
basfa-fdr~t``.,~partment:'cr'
recelvine;lfederal.Ainds:for
th``Ceire::Program'l``t~e
.State;;o````si.and~re2ated..
questMns?-.
Yi%w~-recent' 1ett~errequestBaanopMlon-.op%he;above~
captioned:matters 'and.-from':~icK
we-quote..:ln::part:'
````Advls``~Carmnittee``consls-~ng- of:
re~esenti&lves.fi%m``other+tate:~Agencl&3'-
and:'re@esentatlves,-of?other~.prof~sslonal
.- an&'-~f?lcgroups:-lntei?ested.'lnrDhe-
development
``:````~-Semrices-for~.Chlld~e~l~ the~state
*
!lii:pkepsrlng~.f6za-.meetlng
6f.~the:-Day.C&re
AdViaory-Committee;wer::dlscussed'wl;th
the
Comptrollerls:
Cfflce.th&method.of:payment
of~the-perdiem anal-the~travel-expenses'and
wec.were,<.advised~'that.payment.
coul&%ot'be
-de;. !l!lie:~Departme~t
ls:propos$ng:,to
spay:
the&@mt%ttee~members~-pezyd,lem
,..~ a@:ts&vel
expenses::.on
the~same.-basis..asl-per.!.diem
and
t?aveLexpenses are.~provided:for:.State-~-
.employees-,under-Part1V,'~Section
:13?.of:
H~use``13ill.Noi.12....All
of.the:funds'tobe.
-2495:-
Hon. John Winters. Pa& 2 Cp$nion NO. C-!5~
used for this purpose are funds allocated
& the United States Oovernment for the.
puz$xes of carryingout the provisions of
Title V, Part 3, Section 523(a) (1) (B) of
the Federal:Social Security Act.
"The Comptroller'sDepartmentstated that
~paymentwould not be made on.+e basis that:
"1. The Department did &have any.
spealfgc.statutory authority to
appoint a Day Care Advisory
Committeeor to pay the expenses
of.memb&s of such Committee
whPle attendingofficial meetings;
Andy
: "2. "That employeesof other State
:-Agenciescould not serve on such
; Committeewithout possibly jeopard-
.:-,..
1,&zing their salaries with the
_,
ernploylngState Agency.
%he..hpartment takes the view that It does
.ha+e.the'statutory authority to appoint a
.Bsy Care~.Advlsory Commlttee,andto pw %he
pe=--dPem..and.travelexpenses of the members
of suchGmm&ttee while attendlng.o$Y&lal.
yeetlngs. .. .
:. .-:,.~- . .
II,
a . ..
II.
i .:. .Sin&e:theappolntment..of~fhe Advisory
Commlttee~:ls &'&ondltlon~:precedent %o the
-Departmen~*s'obf;ainine,.approvall~f``b~eState
-P&ah fop ChI3d.Welfare.Services, -the Depart-
ment'feels:thiit:dt.%houldi.,andthat It.can,
legally.ljay these:Commttteemembers.-:per~dlem
.and travel expensesa&ally incurred in the
c&rse of the performanaeof their dutles~'as
'-C~ttee.,m&&er~'s; :.. ::;‘.::~'G_~
c+~.,~
.Ii
.-. ~.::.:I
1, '. "' >
"The .quesMon;has also,&````Pa&& &&.the-
the authorlty.ofrepresen*atiives',of~ other
~State'Departments .tosex?veae..members .of this
Advisor-Gmanlttee. We.understsnd.:that.the
basis.:.~o~.``e%tloning their..author$.ty
t6 serve
ls,~fhat.‘theg:-would
be h6ldinP;two~:pos~tlons of
..&96; ~.:.,:.
."~
<"Y,i:I '.
Hon. John Winters, Page 3, OQinion No.~C-528
honor and trust at the same time, and
therefore.,would be unable to receive'
their salary from the employing State
Agency .. ~. . .
I,. . -.,The Federal Laws providing for
the Advisory Committeesrequire that the
Advisory Committee include among Its
menibers‘representatlves~of other State
Agencies concerned with day care, or .
services reIat.ed.thereto, as well as
representativesof pfofessionalor civic
groups.~ !J!oellmlnatepeople from other
.agencleswould mean that we would be
deprived of the experienceand knowledge
of persons in close&y related fields
suoh'as Education,Health, and Extension
Service, which ls.badly needed in the
development of good Day Care Programs
In this State.
.-
%ly Qurpoae of~the Committee as S~ipiikted
I in the Law and the.agreement with the
United States Children% Bureau, ls.tto,
interest as many different segments.of the
pOQUtition as-QqSSihle with the view of
:extendlngand strengtheningthe services :
avall.able ln aommunltles. for the jpotectlon
and.care of ~chlldrenwho,ere cared for away
from their own homes. By working with
AdVlsory Connnittees~ the DeQartqe+.ls
better .ableto serve the needs of children
being cared .forIn day care centers.'
11.. . .
vWe 'shallappreciateyour opinion on the
following questions:
"1. Is the State &partment of Public
Welfare authorized to set up a Day Care
; Advisory Conimlttee consistingof repre-
sentatlves of other State Departments'or
Agencies and representativesof other -
~qrofessio@. and clvlc'grouljsfor the pur-;
pose of complying-withthe Federal re-
qulrement'and‘agreementwhichIs .the
basis for the~Department!sreceiving
Federal.funda for the Day Care Program
in the'State of Texas?
-2497-
lion,John'Wlnters,Page 4 Oplnlon‘No.~
C.328~
"2. If you answer Question No. one (1)
in the affirmative,then lz the State,
Departmentof public Welfare authordzed
"‘to pay for the per diem and:the.travel
expenses of those members of the ..~
Commfttee who are not employees of
other State Departmentsor Agencies
out of Federal funds made'avallableto
the Department fQr the extension of
the Day Care Program?
“3. If you answer QuestionNo. one (.l)'
in the affirmative,may employees c)S
other State Departmentsserve on this
Day Care Advisory Committee,without
Jeoparqiizln&o$ losing their salaries
from tiheother,State'Agency?~ ,:'.,
"4.. Is.the State Departmentof Public
Welfare empowered to.set up~other types
of'Advisor&~Boardsor.Commltteesof-
Public Welfare (unrelated,toDay .Care
Advisory Committees)which are'essential
to,the accomplishmentof the other..
purposes.ofthe public Welfare Programs
1n.Texs.s
,. in accordanckwlth the Depart-
ment's.agreementswith the.Federa$:.
Government? ..
I'$* Zf khe'kpai-151 S.W.2d 570 (1941),
holding that unemnlosment and nublic welfare laws are legltl-
mate p&+oses within-thepowers of the administrationof-
government. Under this construction,not only all powers and
authorityexpressly granted will be upheld, but allythose
which may bereasonably inferred or implied are to be read
into such a statute.
We are unable to find any law which prohibits the state
Departmentof public Welfare from appointingan Advlsorylloard
or Committee of Public Welfare, such as a Day Care Advisory
CommIttee,nor'any law which Is in conflict with Section 4 of,
Article 695c, which expressly authorizesthe establishmentof
Advisory Boards of Public Welfare. Construingthe statute so . .
asto give it the broadest or most comprehensiveapplication
'ofwhich it is susceptible,as we must, we hold that it was
unnecessaryfor the statute to enumerate specificallythe
various types of committeeswhich are authorized to be
appointed..The statute Is sufficientlycomprehensive,and
the legislativeintent therein sufficientlyclear, to imply
the power and authority for the appointmentof the required
AdvisoryCommIttees or Boards for any phase of such public
welfare,the responsibilityof which is placed In the Depart-
ment of PublSc Welfare, as covered and set out in the statutes.
The.generalwording in the statute, construed ae a whole,
empowersthe Commlsslonerto aPpolnt such advisory boards or
committeesfor such purposes as are reasonably appropriateand
essentialfor the accomplishmentof,the purposes of the Welfare
Act In the absence of any other conflictinglaws on the.subject.
For ln broad general terms The Public Welfare Act authorlies
the Department to performany and al1 acts not Inconsistent
rriththe law for the'purpose of carrying out the provisions.
.ofthe state and federal laws authorizingthe Public Welfare.
*wpama in Texas.
We are unable'to find anything In the Texas Constitution
; which would prohibit such a constructionof the Act aswemake
herein; Section 51, Article III of the Texas Constitution,
..Prohlbltlngthe Legislature from making any grant, or author-
ising the same,.of,public moneys to any Individual,aseocla-
tion of ~lndlvlduals, .munlcipal.
or other corporations,Is not'
given a strict application but Is held to be Inapplicable
where a public purpose for the expendltures.lspresent. State
x.
m Cl 160 vex. 348~331 S.W.2d (1960); Brown
y* Calveston,97,Tex. 1,'.75S.W.2d 488 (i903 Blal;asvWF
%a 37.s.W.2d 291, afflrmed~,123 Tex. 39, 6
lo33 (1931); Allydon Realty Corp. v. Holyoke HouslnR Authorits
23 N.R.2d 665 (x&ss.SuP.Ct.1939); Attorney General Opinions
C-342 (1964) and c-464, and authoritiestherein cited.
-2505-
Hon. John Winters, Page 12 Opinion NO. C-528 .'
Your first and ,fourthquestionsare therefore answered
"Yes".
Your second Inquiry Is also answered in the affirmative.
Your Department is authorizedto pay per diem and travel
expenses of the Committeemembers out of federal funds made
az;vaAle to the Departmentfor the extension of the Day Car,
As previously obsemred,the appointmentof the
Advisor; CommitteeIs mandatory under the statute, and under
Sect. V, Section 27 of the General !Ipproprlations Act (House
Bill No. 12, Acts, 59th'Leglslature,Reg. Session.1965).the
funds received from the federal government were expressly
appropriatedto the various Departmentsfor their use and for.
the purposes for which the,federal grant was made to the
state. It is well-settledthat the statute must be COnStrued
as a whole and with reference to the other statutes both state
and federal, and general system of legislationof which It
forms a part, giving full recognitionto the legislative
.intent.-53 Tex.Jur.2d180, Statutes,~ Sec. 125. Construing
the statute In such light and-giving it the required liberal
Interpretation,we conclude.thatthe'authority to pay
reasonable and necessaryper diem and travel expenses of the
cattee members must be held to have been conferred as a
reasoriable and necessary incident to',committeeservice. It
would bi an unreasonableand unduly technical and harsh.,
i constructionto expect cltlcens~fromvarious parts of the
- : state to expend their own monies for such out of pocket
expenses. Being wlthln the-general-authorized purposes, the
-statutewas not required to-specifically&nunerate these
'particularpurposes In order to authorize the same. .lhe.~
general purposes are broad and comprehensiveenough-to
atithorlzethesesnecessarilylmplled:andIncidentalexpenses,
which are dlstlngulshablein law from salary or compensation,
as Is herelnafternoted.
Your third question asking whether employees of other
state departmentsmay serve on'the Day Care Advisory CommIttee
without jeopardlzlng.orloslng.thelrsalaries 'fromthe .other
state agency la llkewlse answered ttyescr.: It Is:importantto
observe first that the membership on-the Advisory Committeeis,
'not made an offfce or position of proflt~or~en!olument,under
the state or federal government..It.provldesfor.no salarJror
compensatlonjwhich ls:.tobe.dlstlngulshedfrom out-of-pocket
;travel;:
sixbsistence,.and other such per diem expenses/the
'payment.ofwhlch:may be properly authorlzed,bylaw to state
.&nploye& without violatingany constitutionalprovisions;
In&m&h as ;compensatlon is heid to.mean ~sal,ary.Terrell'v.
52371’ 241; i4 s.W.2d .F; 791 .(192g);State v. :
-~."Kingt::118.Teirci~
-2iO6-
Ron. John Winters, Page 13 c-528
Opinion NoJo.
Aronson 314 P.2d 849,
85 (Sup. Ct. Mont. 19%); Kirkwood v.
Soto, Cal. 394, 25
P. 288 (1891); McCoy v. Randlln. 35 S.D.
ml53 N.W. $1 (1915); Milwaukee Co. v. Halsey,g14~l~l``a~,
1% N.W. 139 (1912); Treu v. Klrkwood,255 P.2d 40
sup.ct. 1953). It would not be an "office of profli or trust;'
under
-_--- the Constitution.as in Sect. 12 of Art. 16, or "civil
office of emolument" under Sect. 40,,ofArt. 16, or "office or
``ltlon of honor, trust, or profit under Section 33 of Art.
.
We also hold that the place of membership on the Advisory
Board or Committee would not rise to the dignity of "any other
office or position of honor, trust . . . under this S~tateor
the United States. ; ." within the constitutionalmeaning of
such terms In Section 33 of Article 16, Texas Constitution,
which states In part:
"The Accounting Officers of this'state
shall neither draw nor pay a warrsnt
upon the Treasury in favor of any
person, for salary ~or~compensatlonas
agent, officer, or appointee,who i
holds a?t.the,sametlmeany other office
or position of honor, trust or profit,
under this State or the United States,
extG@t as prescribed in this
Constitution. . . ." (emphasisadded)
This Se&ion was notincluded 5.nthe Constitutionof 1876
as a safeguard against a recurrence of the evils and abuses of
the 'carpetbag"era, since It made Its first appearance In the
Constitutionof 1869, a constitutiondrafted by Reconstruction'
Republicans,and its policy reasons are at best conjectural.
See Vol. 43, Tex.Law.Revlew,p. 951; Tex.Const. Art. XII, Sec.
42 (1869).
The only policy basis for the section has been stated to
::.~.
be that of lnaurlng full value for state services rendered In
the payment of'salary or compensationout of state monies.
Thus the safeguard was aimed at preventing a person from hold-
.lng at the same time two state offices or positions; or a
state and federal office 'orposition, the effect of which
Would cause that person to divide his time and fidelity,'to
the detriment of his state service. See Attorney General
@Inion No. 0-2607 (1940);,Vol.43, Texas Law Review, p. 952.
In construing the'meanlngof the Constltutiohand statutes,'
a court will never adopt a constructionthat will make them
absurd or ridlculous.orone that will lead to absurd conclu-
sions or consequencesif the language of the,enactmentIS
-2507-
Hon. John Winters, Page 14 "opinion NO. C-528
susceptibleof any other meaning. 53 Tex.Jur.2d241, 243,
Statutes; Sec. 165.
Furthermore,wherever.posslble,that construction shall
be adopted which shall promote the public.Interest In accord
with sound economic or governmentalpolicy. State v. DeCress
72 Tex. 242, .ll S.W. 1029 (1888).
Generally; In arriving at the meaning of the Constltutlon;
we find It should not be given a "narrow or technical con&-u+
tion" but It Is to be given a "liberalmeaning In order to
effectuate the purpose of the provision of which It IS a part"
and 'words will be consideredto have been use.dIn their
natural-senseand ordinary signification,unless the context
:lndlcatesthe contrary." 12 Tex.Jur.2d 362-363, Constitutional
Law, Sec. 14; Sec. 16, p. 364, and cases therecited.
The words in the phrase "Office or position of honor,
trust,nor profit" are each words.havlnga meaning ascertainable‘
by reference to the other words with which they.are associated
under the maxim, noscitur a soclls. 53 Tex.Jur.26221, Statuted
Sec. 154.
Thus, unless it is an office or posltlon'of honor or trust
within ttiesense intended or meant,by the Constitution,a 'Stats
i employee may serve in such a capacity and still draw his salary
from the Comptroller.
The words ?offlce or position of.honor or trust" as used
in Section 33 of the Constitutionshould be held to have been
used analogously;.sndas'havlng the sqne chsracterlstlcsand
general though not i'dentitiaj. meanlng;,whengiven a.practiCal,
natural, -ordinary,and reasonable construction. Webster's
Third New InternationalDictionary 'p. 1769; Black's Law
Dictionary,.&thRd., p. 1234, 33 Words & Phrases, p. 5%.
nPosltlon;"and cases there annotated. The authoritieshold
that a vposition'! is analogous.to an "office" In that the
duties that pertaln.to it are permanent and certain. The same
essentials,attributes,and characteristicsarepresent lnsof~
asthe duties aresgovernmental: Frajler v. Rlmore, 180 (petit-
232;'173 Siw:2d 563, 565;. Fredericks v. Doard of'Health of
Town of West Hoboken, 82 A.528, 529, '82 N.J.L. 200; Rlsle v.
Board of.Clvj.1Servlce~Cori@'s.of Cl htyvof``dAr$e~+
2d 167, 16% 60 Cal.App.2d32;.Elurr, P
Freeholder8of Bergen County;Sup.,'163-A. 555, 556, 110 N.J.L*i
9.
An'"bfflce~'~means"place" or "position" and they have
.beenheld',tobe~substsnt%.ally
_~. ., analogous and Interchangeable
-2508-
Hon. John Winters, Page 15 opinion No.~C-528
as understood in law. 29 Words'& Phrases, p. 270, under
"Office -- Place or position";and 1965 Pocket Part pp. 97-
98 and cases there annotated.
As stated in 22 R.C.L. 383. Sec. 1.6, Public Officers,
"Constitutionsand laws sometimes
contain provisionsapplying to offices of
trust or honor and offices or places of
trust or profit. The line between 'offices'
and 'placesof trust or profit' within the
meaning of such provisionshas not been
clearly marked, and they may be considered
as approach@g each other so closely that
they are In all essential featqres identical.
A place of trust or profit is not, however,
Identical.wlthan office, yet it occupies
the same general level in dignity and
importance. . . .'
We have, therefore,~heretofore correctly held on this
subject in Opinion No. O-5341, dated July 19, 1943, that there
- fs no mz$terial;
legal dl~t~nctlonIn meaning between the term
offic0 and po$ltion, and that,as used.in our Constitution,
,zsuch-"posltion'or "office"means that the holder thereof must
exerclse~some governmentalfunction, or be the de@osltory of
some sove~lgnty of the sta$e.'or t:e United States before It
l%%esto .thedignity of an office under the state.,orUnited
Ther& must be delegated to the person holding Such
"OffI&" some of the sovereign functlotis of the state -orthe
Utited States Government.
We held'ln the Opinion as follows:
"There are several persuasive, though not
conclusive,characteristics, oft~&hat
constitutesa public office; or to express
It In another way, what constituteshold-
lng an 'officeunder the U&ted States.'
Weemention B few: Tenti and duration,
oath of office, official bond, etc. But
one indispensablecharacterlstlc,as the
cases hereafternoted affirm, is that the
duties performed shall Involve the
exercise of sovereign power, whether
great or small. Our ownsupreme Court, in
a comparativelyearly case,-Kimbrmh v.
Brnett, ,93Texas 301, 55 S.W. 120, quoted
wi~vio~pi?oval Mechem on Public Officers as
:
-2509-
Ron. John Winters, Page 16 Cplnlon No. C-528
"'A public offlce Is the right, authority,
and.duty created and conferredby law, by
which, for a.given period, either fixed
by law or enduring,atthe pleasure of the
creatingpower, an Individual1s Invested
with some portion of the sovereign
functions of the government,to be
exercisedby him for the benefit of the
public."'
In the above Cplnlon.No.O-5341, and from the authorities
we found that "office"had a definlte,legalmeaning In the
sense employed In the Constitution:
"'The term "office" implies a delegation of
a portion of the soverelgnpower to, and
possession of, It by the person filling the
office; a public office being an agency for
the state, and the person whose .dutyit la
.to perform the agency being a public officer.
The term embraces the.ldea of tenure,
durzitlon,emolument and duties, and .has
.respectto a permanentpubllc,trus$to be
exercised ln'behalf of government,and not
., 'toa rqerelytransient,occaslonalgr.
incidentalemploylnent.A person --'the ',
~ervl~ of the governmentwho -deriveshls~
posljzlonfroma du&y and legally authorized
election or appointment,whose duties '&re ..
continuousIn their-natureand.defined by .~
rules prescribed by government,and not by :
contract, consistingof the exercise of I
importantpublic powers, trusts, or duties,
-asa part of the regular admi,nls~tratlonof
government, she place and the duties:
remalnlng, though the Incumbent dles.or
1s.changed, every office In the c~nstltutlonal
ieanlng of.the tern!implying an author19
to exercise some portion of the sovereign
power,.eltherln~.maklngi exeautlng Or
administeringthe laws. M&hem on.Publlc
Officers,:0.179."
The recerit~caseof Wlllls,v.``otts,37f~sYW.2d 622 (19641,
by the Supreme C&t.of ~Texas~.construing Art.:3, Sect. 19, ad
Art. 11. Sect: 5 Of the Constitution,held that a City Council-
man'of ihe C&y-of .fi.z,-Wo&h,heldan~'Iofflce~underth& State.'
Utlliz,ingthe reasoning of the earlier de~isl&is, the Court's
declslon.is~ln~harmony~wi~th~'our``lnlonand .notIn conflict
with it or the distinctionsought to be made. ..~
72510-
Hon..John Winters, Psge 17 Opinion No. C-528
Those authoritiesso coiistrulng the meat&g of."offlce"
or "position"as comprehendingcontlriuous performance oftdefined
permsnent public duties, compensation,tenure,.exercise of
SOverelgnty,and other essentialrequisitesare In accord snd
are thoroughly discussed and briefed In our Opinion O-5341.
See Witkowskl v. Burke; 65 A.2d 781 1949); Sowersv. Wells,
150 Ksn. 630, 95 P.2d 281, 284 (1939f; .Abbottv. McNutt, 218
cdl. 225, 22 P.2d 510 (Zg33),89 A.L.R. 1109; Howard v..Saylor,
305 Ky. 504, 204 S.W;2d 815 (1947);United States v. David
Mouat, 124~U.S. 303, 307, 31 L.E& 4b3 1888 ; People ex rel
Attorn_er 14 P. 853 1887 ; rr.n
me ~oe's
In Re. Wheeler.Mallory, as Public Adm'r. v. Wheeler,
< 130 N-i. 97 (1912); Patten 8 S.E.2d 757 (1940);
wherein the Supreme Court of Georgia approved of a,state
employee (member of the Highway Board) holding at the same tlme-
B position as a niemberof the Advisory Committee of the Atlanta
'Agency of the ReConstructlop-Finance Corporation,the Court
holding that his-office (llsnot an office of profit or trust
under the Government of the United States"; HartIRan v. Board
of Renents of West Virginia University, 38 S.E. 698 ('1901);
Hirschfeld.Commonwealth ex rel Attorney General, 76 S.W.2d
.%7 (w:1934);- State ex rel v. Hawkins, 257 P. 411.(1927), 53
A.L.R. 583' and Ki~ston.Assoclatea~v.La Guardia, 281 N.P.
Supp. 390 2X935), wherein It was held that members of the
A~QE% Committee on Allotments,tcreated:bythe President of
., were not holding an office of honor, trust, or
emolumentunder the-governmentof.the United States."' The
.$urt said:
"'C'learl?;the members of.the Advisory
Committee on Allotmentspossess none of
the powers of the sovereign; They per-
form no independentgovernmentalfunction.
Such functlon.3.ngeneral is either
legislative,judlcla& or executive. It
Is too plain to require discussionthat'
the Advisory Committeeexercises no
legislative or judicialprerog&lves. It
appears to be fairly evident that It IS&e-
wise possesses.nopowers of the executive.
The CommItteethus lacks the most.
&o&&t cha@acteris$icor attribute
associated w%th the Idea of publlc~office,
namely, the right to exercistiSOme part
of the power of the sovereign.'"
Opinion O-5341, of July 19, 1943, that 8~Mstrlct Attorney
could receive his salary and also serve as Chairman of the
Local.Chapter of The American National Red Cross, a Corporation
-251!-
Hon. John Winters, Page 18 Opinion No. c-528. i
charteredby Congress,because the latter was not an officeor
position under,the United States, Is consistentwith our
earlier Cplnlon No. O-5314, of July 2, 1943, holding that a
state or county official could not be excluded from drawing
his salary while serving as a member of an advisory bosrd for
registrants,the latter not being a position of honor, trust
or profit under this State or the United States ,wlthinthe
contemplationof our Texas Constitution. i'
Our still earlier Opinion No. O-4458, of April 8, 1942,
holding that a state employee could serve without loss of
salsry as a member of a~County Tire Rationing Board for'the
same legalreasons Is llkewlse consistentwith the above
Opinions.
Our earlier and thoroughly consideredOpinion No. O-4313,
of Jan. 24, 1942, written by gollie C. Steakley, now a member
of the Texas Supreme Court, Is likewise consistentwith the
above opinions ln.holdl that a.8tat.eemployee.(memberof
State Board of Education"B could still draw his salary .aud
serve on an Allen Enemy Hearing Board, created by the federal
government through the U. S. Attorney-General,paying only.
nominal compensationbut requiring the member to take an.oath;
The Bomd appointmentwas temporary,'forsn lndeflnlteterm,
with only occaslonalmeetings and sporadic activities. It
was merely a fact finding and advisory admlniatrative
Instrumentality,which could neither make norenforce deciel&&
.We expresslyheld that membershipupon such a Doard, which _
would be presumably identical to an Advisory Doard or Caamrittee;
did.not constitutethe holding or exercising of.an offlae of
trust, honor, or pro~fltunder'the'unltedStates. Wethere held
that~"it does not constitutea 'posltlon',as'that term was
Intended by the Frsmers of the Constitution."
The precise question has still never been determinedby
a Texas court but other'jurledlctionsare In general accord
with our clted.hol.dings.
In McIntosh v:Ifutchlnson,59 P.2d 1117.(1936),the
Supreme Court of Washingtonheld thata State Senator.could
still draw his salary and serve as a~"Dlstrlct Supervisor"
of the Federal Works Progress Administration,which was not
deemed to be the acceptance of a "civil office," cltlng
.Bexneyv. Hawkins, 79 Wont. 506, 251 P. 411 (lg27), 53 A.L.R,
583, as to the meaning of the term 'office,"to;wlit:
"After.an exhaustive examinationof the
authorlties,..we
hold that five elements
are~lndispensable.ln.anyposition of
public employment,In order to make it
-i512-~
lion;John Winters;'.Page
19 .. C-528
..,OpinionWo.
a publYC office of a'clvil nature: '(1)
It'must'be created by the Constltutlon
or~by the Legislature or created by a '.
municipality or other body through
authority conferred by the Legislature;
(2) it must possess a delegationof a.
portion of the kovereign power of
goverrqent,to be exercised for the
benefit of'the public; (3) thepowers
conferre'd,snd the duties to'be discharged,
must be defined, directly or lmplledly,
by the legislatureor through leg&slative
authority; (4) the duties must be per-
formed Independentlyandwithout control
of a'superlor power, other than the law,
unle&,they be those of an Inferior or
.subordlnateoffice, created or authorized
by the Leglsiature,.andby It placed
under the general control of a superior
officer 'or'body;(5,) hitnqxsthave'some
permanency and continuity,and not'be
only temporary or,occasional. In addition,
:
in this state an 'officermust take and
. . ' ,file'an offtclal oath; hold a commls~slon
or other wrktten authority,'andgive'an? ..
official bond, if.the latter be required -
-by proper authority." -
The Court concluded that the Senator was not appointed
.toan office since "the-g$eatweight of authority well supports
the.necesslty of meetingall of the .cqndltionslaid .downby the
Montana Courtand. . . it $8 not made to appear that these
conditions;'orany of them;have been here met . . .".
'In accord and Involving similar questions and constltutlon-
al prohibitionssre State v. Corley,.172 Ai 415, (Dsl. 1934);
'Curtinv. State, 214 P. 1030 (Cal. 1923); Mulnlx v. Elliott,
156 P.,216 (Colo..x916); State v. Jo- 78 So. 663 (~a. 1918);
McCoy v. Roard of Suoervisors, 114 P.2d 569 (1941),.cit
Carpenter 135 Tex.'413, 145 S.W.2d 562 (1940 ,
for the.necessityof taking a liberal vlew.~toward the'.encourage-
m&t of such ena&ments t&t.their protectivepurposes~"may be
fulfilledwithout undue.lmposltionof'constltutlonal1Smitations
or hlnderance through narrow judicial construction."
In Parker v. Riley, 113 P.2d 873, 875-876; 18 Cal.26 83
(1941), 134 A.L.R.'1405,the California Supreme Courtupheld a
statuteproviding for ,thecreation of the California Comm$ssion
on Interstate Cooperationand providing for members of the
legislatureto serve thereon. Although the Constitution'
-25X3-
Hon. John Winters, Page x) Cpinl&No. C-528 :.
expresslyprohibitedthe '&embersfrom accepting "any Office,
trust, otiemploymentunder this state," the Court held that
the constltutlonal,mesnlngof-“office” or.“trust” ‘wawnot
applicablethereto as follows:
'*It may be noted, however, that the
pds~flons created by the +tute here
attacked lack certalrielements usually
associatedwith an "office or "trust .
Thus, It Is generally said that an office
or trnat requires the vestlng.ln-an'
individualof a,portlon of the sovereign
powers of the state. (Citationof
authorities) The positions here created
do.not measure up td so high a standard.
They involvemerely the interchangeof.
infopnatlon, the assemblingof data, and
the formulatlon.ofproposals to be placed
before the Legislature. Such tasks,do
not require the exercise of a tart of the
.'
. sovereignpower of the stat&.'
The Riley case doctrine was recently recognizedand re-
aff&ued by the Supreme Court of Califormia~ ln State v. Aron-
son 314 P.2d.849,856-857 (1957)..li.aCcord, see also
'&es le v. Barrett 15 N.E.2d 513 (Ill. 1938); Johnson v.
T)(Ga. 1919); and-ReadlnR hll, .52
P.2d 155 Adz. 1935 , for the.proposition-t& certain
:eesentialelements are required to constitute sn Icofflce"
oi?"'posltlon"as used in such constitutionalsense and:the
~ineaning,ofthese terms as so used do not precltie the 'accept-
ance of such duties and serVlce involving honor &nd%rus$ and
fran which sny citizen could n&escap& without evad$ng bl8
civic or patriotic duty to aid his government or coun!rY in’
.tlmes of ten@orsry emergencies.
The terms "office"or '$osltlon"the&fore' neces&irllY
implies, smongother eiements, compensation,' stability,
dui-ation, permanency, continuity, taking oath and giving bo&t
and the~msklngand administeringof governmental decls-ions‘
independentlyand wlthout Control of a super&or powertietc..--
..
., The &@&M-Sal absence.ofthese essentiali appertainingto
membership on a Day Cai-e AdvlsorJr.Ccmmitte&frees a state
emplcrgee .fiomany constitutionalinhibition to.such service'
while continuingto draw his &ate ssla??yi
In a&wer to goW fifth questlon,'thatis; 'dossiout?
Departmenthave the authorlty.topay the per diem and $r&vell
expense8 solely out of federal funds Upon a finding of-.
.necessltythat such camnltteemembers attend the meetings ~.
-25 14-
for the nwtxe of .csrrjklng of the Acts,
out the pr&r,iri~lons
_ ws hiiyeconc$ded fm*‘l$ m&y be answered in'the afflrma- '
t1v.e. Under the gerieralst+$ut~ry.scheme,and plan of
operation, ws holdsthat under the'federal and~ktate laws he‘&-
inabt&e disouased, the power Is Inherent ln‘the'Dspartme@t,of
F?ibllcWelfare to t@ce the.twxessary steps to comply wltih.+lts
authokrl d contract+ilagreementrequired to be filed tith
the Se0".
x%fary of State'before. the fed&raLm&a can bs
expen,&%qd thereafter'to use and expend such.funds for the'
pUrp1"
Q% 8.,fixtit& they were @lotted to the state without
the ni3~sslty ef a'speclflc enumeratfon In tik statutes. Ln
this connectl~, we.heretof&e held In Attorner%eneral's
Cplnl~ C4K) .(Msy12,.1965) that~'travel'expeksek of unpaid
persm1, such as committeememb&ti.tihlle.&sged in the
perfoMauce of the .offlc.lal business of‘the comm%ttee, can
Abe pald'out of.fe.deya& fur@ received by the State of Texas
by vlrtue of the contractualagreement between the state and
the federal government,,The factual situation presented i"
that:'QjlnlonIs an+ogous to:the one here presented and Is
subijt8iit&ally
the &me. The state and federal government
'we* authprlzed to enter into the contractual arrangement.
We we -ware of any law of this state which .worild prealude .'
~.the pay&at ``'$iioh.per-diem or travel expelisesout of the
federal mds tib'a~zkprlatedIn such general.terms compre-
hetis&Pe~ei%@ghto.ln&lude such purpose tid under'the s,tat&d
clrcumsttiees.
SUMMARY~
------- _i',
The State.Dspartmentof Public Welfare.
Is authorized to set up a Day Care Advisory
Committee consisting of representativesof,
other State Departments or Agenclea.and,.
representativesof other profess$onal and
civic groups for the purpose of complying
with the federal requlrementxnadethe basii3
for the Department'sreceiving‘federal @nds
far the lky Care Prog&m .ln the State of ,,
Texas.
It is empowered to set up other types~of
Advisory Boards or Commlttees.ofPublic'
Welfare (unrelatedto,Day Care Advisory ,~
Committees)which are essential to the
~aacomplls~entof the other purposes of the.
PuJ~licWelfare Programs In Teias in accordance
with the Department*8agreement with the
federa& government.
-2515- :
Hon. John Winters. PsSe 22 opihio" No...!528
It Is authorizedto pag per diem and
travel expenses to the committee members out
of federal funds made avazlable tQ the.Depar‘t-
ment for the extension of the Day Cat%
Program.
Employeesof the State Departmentsmay
serve on the Day Care Advisory Ccmmlttee.
without loss of salary from the other state
agency, such membershipnot constituting
'an office or position of iionor,trustYor
profit, under this State or the United St.ates"
within the constitutionalmean1 of those
terms In Section 33 of Article T
1 of the
Texas Constitution.
Yours very truly,
WAGGONRR
CARR .
Attorney General :
-APPROVED:
'OPINION CCHMITTEZ
W. V. Ceppert, ChaIrman
Bob qowers
Arthur.Ssndlin
H. Grady Chandler
Roger TJrler
Marietta Payne
APPROVEDF'ORTREATTORNEYGENEEiAL
.BY: T. B. might.