Untitled Texas Attorney General Opinion ( 1959 )


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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