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THEATTORNEY GENERAL OP TEXAS July 23, 1959 i Honorable Robert S. Calvert Comntroller of Public Accounts Capi.tol Stati.on Austin 11, Texas Opinion No. ``-671 Re: Questions relating to issuance of salary war- rants to the President of Texas Southern Uni- Dear Mr. Calvert: vers:ty. We have your letter of July 7, 1959, in which you ask the followl.ng question: "I ~311 thank you to advise me whether the funds paid by salary warrants issued to Dr. S. M. Nabrit, President of Texas Southern Universi- ty, during his tenure on the Nat-lonal Science Board result in his being in- debted to the State of Texas and whether that amount must be repaid to the State before future warrants may be issued to him." In Attorney General's OLinion No. W-639 (1959) we advised you that Section 33 of Article XVI of the Constitution of Texas prohibited warrants for payment of salary from being rssued to Dr. Nabrit 'so long as he remains on the National Science Board". We have been advised that no such warrants have been Issued to Dr. Nabrit after you received notice of hits service on that Board. It has been consistently held that Section 33 of Article XVI of the Constitution of Texas forbids the Comptroller from drawing or paying a warrant upon the Treasury in favor of a person holding another position of honor, trust or profit. That section is prohibitory - . Honorable Robert S. Calvert, page 2 (``-671) only in its appll.cation against the accounting officer of the State and 'doer not deal with the right to reim- bursement of the official concerned. (Attorney General's Cpi~n1on O-5157 (1943)) If the Comptroller draws a warrant to a person holding such a dual positjon after the Comptroller i.s notifi~ed of or is charged with constructive knowledge of the facts, he has violated Section 33. Were a person paid by State warrants on two separate payrolls, the Comptroller probably would be charged with construc- tive knowledge of such fact, and warrants Issued under those circumstances would be issued in violation of SectIon 33 of Article XVI. However, in the instant case, the Comptroller had neither actual nor constructive knowl- edge that Dr. Nabri.t held a positi~on of honor, trust or profi~t under the Federal Government until the latter part of May, 1959. Notice is usually defined,,as "information concerning a fact actually communicated. (31 Tex.Jur. 385, Notice, Sec. 2.) Without knowledge, the Comptroller could not be legally liable for making the paTyments to Dr. Nabrit. We are advised that Dr. Nabrit resigned his position on the National Science Board on June 11, 1959. He no longer holds the two positions of honor, trust or profit, and is entitled to receive the warrants for his salary from that date, unless some other prohibition exists. Article 4350, Vernon's Civil Statutes, reads in full as follows: 'No warrant shall be issued to any person indebted to the State, or to his agent,,or assignee, until such debt is paid. If the circumstances under which Dr. Nabrit has re- ceived his State salary warrants during his service on the National Science Board result in his being "indebted" to the State, the Comptroller would be prohibited from issuing any further warrants to him until such indebtedness is re- paid. If Dr. Nabrit is not "indebted" to the State, we see no prohibition against resuming his salary payments. We are not here concerned with the line of cases in- volved in State v. Steck Co.,
236 S.W.2d 866(error ref.). Dr. Nubrit was paid his salarv pursuant to the apoointment and actual service rendered the-state as President of Texas Honorable Robert S. CalVert, page 3 (ww-671) Southern Universi,ty. The warrants were issued and pa,id pursllant to a valid appropriation supported by pre-exist- ing law. There is Mnguage JonAttorney General's Opinion No. O-5123 (1943) to the effect that if an employee re- cej~ves state warrants whl.le holding a position of honor, trust or profi.t under the Federal Government, he is "in- debted" to the State for that amount. That language is unsupported by cited authority. In the case of Wichita County v. Robinson,
155 Tex. 1,
276 S.W.2d 509(1955), we find a somewhat analo- gous principle. Robinson, as County Tax Assessor, had received fees under a statute the Supreme Court later de- clared to be unconstitutional. He had performed services for whl.ch the fees were paid him. In the orl.ginal opinion, the Supreme Court held that all money so received must be repaid to the County. Hcwever, on rehearing the Court considered whether public servants receiving funds in com- tlete goo; faith under,,such circumstances should be punished or whether their rights are to be protected." The Supreme Court said: I,. . . The services have been performed by the Tax Collector. A part of the compen- sation allowed by the statute was paid to him by the Commissioners Court. All parties acted in good faith and we think it would be in- equitable under the circumstances here to re- quire the respondent to repay the compensation so paid to him. "We therefore hold that the County is not entitled to recover from the respondent the compensation which had been paid him in reliance upon the validity of the law and on the advice of the Attorney General." To employ the language of the Supreme Court of Texas in the Wichita County
case, supra, we believe that "it would be inequitable under the circumstances here to require (Dr. Nabrit) to repay the compensation so paid to him." The complete good faith of Dr. Nabrit cannot be questioned. There was no direct holding, insofar as we can ascertain, by either this office or by the courts, prior to the issuance of Attorney General's Opinion W-639 . HonorabltT Robert S. Culvert, page 4 (``-671) (l?lj?), that Dr,. Nabrit's State salary warrant could not be drawn on the Treasury while he served as a member of the Nztional Science Board. He served as College Presi- dent, did the work, performed the duties, and the State received the benefit of his work for which he has been paid. Under these circumstances, Dr. Nabrit is not "In- debted" to the State. In our opinion, the Supreme Court has settled the question contrary to the language in Attorney General's OPinicn O-5123 (1343) and the same is overruled to the extent of such conflict. Under the attending circumstances, we do not be- lieve Dr. Nabrit Ins liable to repay the sums involved to the State; hence, we do not believe he is Indebted to the State within the meaning of Article &350. Therefore, the Comptroller is not prohibited from issuing salary warrants to Dr. Nabrit for his service as President of Texas Southern University up to the date the Comptroller gained actual knowledge of his service on the National Science Board and from issuing salary warrants for his service subsequent to June 11, 1959. Both of your questions are answered in the negative. SUMMARY Under the facts presented, the Presi- dent of Texas Southern University is not "indebted" to the State under Article 4350, Vernon's Civil Statutes; hence, he is not obliged to repay the amount of salary warrants he has re- ceived before future warrants may be issued to him. Opinion O-5123 (1943) has been overruled to the extent of conflict. Yours very truly, WILL WILSON Attornev General of Texas Tom I. McFarling Assistant TIM:zt:rm . . APPROVED: OPINION COMMITTEE Geo. n. Alaclthurn, Cliai.rman Grundy William:: Elmer McVe> Joe Allen Osborn Faul W. Floyd, Jr. REVIEWED FOR THE ATTORlESEYGENERAL BY: W. V. Geppert
Document Info
Docket Number: WW-671
Judges: Will Wilson
Filed Date: 7/2/1959
Precedential Status: Precedential
Modified Date: 2/18/2017