Untitled Texas Attorney General Opinion ( 1952 )

,``~EATTORNEY GENERAL
OF-TEXAS
PRICE DANIEL
.4TTOR?awGENERAL
September 22, 1952
Hon. Larry 0. Cox
Executive Director
Board for Texas State Hospitals
and Special Schools
Austin, +xas opinion. HO. V-152j
Re: Construction of Texas
Constitution, Article
XVI, Sections 12, 33,
and 40, as applied to
certain employees and
contractors who are
receiving compensatlon~
Dear’‘iI9O Cox: from the uuited States.
You have requested the opinion of this of-..
tlce~ on the following questions:
.
Is it In violation of the’Constitutlen
to employ kd pay a art-time employee. at the Big
P
Spring Statue Hosplta who is also drawing pay as an
enlisted man in the armed services of the United
States?
2. Is it in violation of the Constitution
to retain on our payroll a doctor who in no way neg-
lects his duties to the State of Texas but who does
after duty hours, act as an lndcpendent contractor )or
the Veterans Administration (in this IdStanCe Di’. Rap
C. Sloan of the Big Sprlng State Hospital)’ without
monetary profit being received from the Veterans A&al&
istratlon. f.or his services?
3* If your answer ‘to quest%on nQo@er two
above Is In the afflr~matlvep .would 'It ‘differ. If Dr.
t;yn; drew oompensatlon from the Veterans Admlnbtra-
4, I8 it In violation of the Constltutlem .” ‘..
for the Big Spring State Hospital to utlllse the aer--~ .. .,,~.
vices. of an Independent contractor and pay him not as
an employee but on a purchase* vouoher, when such a per-
ron 18 on the yr&l$ of the Veterans Admlnlstratlon
as an employee I@ e 09 Dr. Ca W. Atherton.)
HOII. Lury 0, Cox, page 2 (v-1527)
5. .Is It in violation of the Constltutien
,.for the B$g ‘Spring State Hospital to utlllee the ser-
vices of an independent contractor and pay him not a8
an employee but on a purchase voucher, when such a
person is in private practice and 1s not an employee
of the Veterans Administration but does draw compensa-
tion from the Veterans Administration as an independ-
ent contractor as consultant? (E@g.,Br. J. C. Banker.)
6. Is It In violation of the Constitution
for the Rexla State School and Hometo retain on Its
payrolL four employees who are ex-servicemen of World
‘War 11, who are attending Veterans .4dminlstratlon
School at night and of course, drawing compensation
from the Veterans Aiminlstratlon for such training?
.
7. In construlng both Sections 33’.and~40
of Article XVI0 is it unconstitutional t6 employ any
of the above categories’of persons when they are pres:
ently In the Rational Guard, the Rational Guard Re- ‘
serve9. or the Organized Re.serves of the United States?
.There are three se&ions of Article xVI’of
the Texas Constitution which .relate to,the subjeot :
matter. of these que~st1ons.a Seotlon 12 statea:
“lo memberof Congress nor person
holding or exercising any o!flce of profit
or trust under the United States, er el-
ther of .Ihem, ‘or umder amy foreign power,
shall be elig%ble as a notuber of the Leg-
irlature or hold er exercise any offloo
of proi or trust under this 'State.n
section 33 provides:
“The Accounting Officers of thi.s
Stats shall.rrelther draw nor pay a warrant
upon the Treasury in favor OS any person
for salary or comp6nsatl,oa ,a8 agent, offi-
ce*. or appointee who holds at the same
time any other ojflce or position of honor,
*rust or profit, under this State or the
unlted States, excrpt.as prescribed In this
Constitution. Provided, that this restric-
tion as to the drawing .aud paylmg af’ war-
rants upon the Treasury shall not apply to
officera of tbs National Guard of Texas,
. , -
Hon. Larry 0. Cox, page 3 (V-1527)
the National Guard Reserve, the Offi-
cersReserve Corps of the United States,
nor to enlisted men ~of then National
Guard, the Kational Guard Reserve, and
the ‘Organized Reserves of the United
States, nor to retired officers of the
United States Army9 Navy? and Marine
Corps, and retired ~warrant ,offlcers ,and~.
retired enlisted man of ,thp ,united
States Army9 Navy,’ a,dd Marine Corp``.~’.“.
7
And Section 40 says:’
“No person shall hold or exercise,
at then same time, more ‘than one Civil
Office of emolument, except that of Jus-
tice of Peace, County Commissioner No-
tary Public and Postmaster 0 . . a JGlus
the same mjlitary personnel listed in
Section 33/$ unless otherwise specially
provided herein. Provided,.that nothing
In this Constitution-shall be construed
to prohibit . 0 u itary per-
sonnel listed in Section 3 from hold-
ing in conjunctionwith such office any
other office .or posl,tion of, honor, trust
or profit 9 under ‘this State or the .,
United States, or from voting at any
Election; General, SpeciaJ-.or Primary
in this State when otherwise qualified.”
Thus Section 12 prohibits a person from
holding *any~o %fice of profit or trust” ,knder the
State of Texqs if thst person holds such an office
under the United States,. another state oft the Ubiol$,
or a foreign power; section 40 prohibits the hold-
ing of. mere, than one llcivil office of’ emolument”
whether in the state or” federal government, certain
civil and military offices or positions of “honor
trust or profit” excepted; and Section, 33 ,prohl.bl&s
payments of salary or compensation from the State
Treasury to agents, officers or employees of the
State’who at t.he same time hold another “office or
position of honor, trust or profit” under the state
or federal government) certain military personnel
excepted y
In answer to your first rqu0stion, we call
your attention to two opinions of-the Texas Supreme
Hon. Larry 0. Cox, page 4 (V-1527)
Court which involved the exceptions in favor of cer-
tain military personnel. $ktlsenter 135
SJ&2d 562 (, _ _,
euDarQ, 140 TAX. 271, 167 SiWSci
In the first case, Carpenter, the Chairman
and Executive Director of the Texas Unemployment Com-
pensation Commission was commissioned and on active
duty in the Army of ?.he United States as a result of
being ordered to service as an officer of the National
Guard. The Supreme Court held that he remained an OS-
ficer of the National Guard within the meaning ofhi:
exceptions in Sections 33 and 40 and therefore
not vscated hls``civil office; that ds mllltary’ap-
pointment did not violate Section 12 of Article XVI
of the Constitution$ and that mandamuswould lie to
oompel payment of his salary as a state officer.
The Cramer case concerned the existence of..
an off&e of temporary district judge which existence
dspeti de.d on t h e status of the regdar judge. The
regular judge who had ~recelved a temporary oommlsrlon
and was on ackve duty In the Army of the United States,
was held by the Supreme Court to have been ~onunissloned
in the llOfficers Reserve Corps” within the meaning of
Sections 33 and 40. For this reason the Court held t&it
he was excepted from,the prohibitions of those sections,
that he had not abandoned his civil offioe by accepting
the commission, and that mandamuswould lie on behalf
of his successor to compel payment of the successor”8
salary as temporary judge. The Court expressly pointed
out that the exceptions to Seotlonsjj and 40 are not
limited by but must control, Section 12:
3qbny other construction would render
the amendments to Sections 33 and 40 mean-
inglese, and would mean that the4r adoption
by the people was an idle gesture. Then,
too if it be contended that the amendmenta
to Sections 33 and 40 are in conflict wlth
Section 12 of Article 1.6, it must ba noted
that such amended seations, Nos.,33 and !+O,
are the latest expression of the will of
the people, and any provision@ of the Con-
stitution prevfously exlrting must, In case
OS conflict, ield to them. State v. Brown-
son, 94 Tex. t 36, 61 S.W. 3.143 Gillespie v’.
Li htfoot 103 Tex. 359,.127 S.W. 799."
(1%7 S,W.Jd at 152.)
Hon. Larry 0. Coxb page 5 (V-1527)
Pour opinion request and accompanying corre-
spondence describe the enlisted men referred:to in your
first question as llpart-tlme .emplopeeson The Assistant
Auditor describes them as “part-time attendants.” We
conclude that the nature of their relationship with the
State is that of employment rather than a relationship
in the nature of an 810ffice,a and, therefore, that none
of. them hold “an office of profitTor* trustl~ or~‘“a civil
office of emolument” wlthln the prohibition8 of Sec-
t.ions 12 and 40 res eetively. Att’y Gen. Ops: V-303
(1947.) d-5349 f19b3vo Cf. Lowe v. Statq, 83 Tex. .
Grim. i34, 201 S,W. 986 (19lm.
However, each of these enlisted men receives
from the State salary or conpensatlon as an employee,
and this of,flce has construed the term “appolntee,8’ as
used in’section 33, to ba a synonym of the term employ-
* Attly Gen. 0~:. O-2607 (1940)e Therefore the pro-
Elktidn of Section 33 mayyapply to these emiloyees
depending on thk gnswers to two.?remaining questions~’ Is
their *‘enlisted. status a ilposltkon of ?honor/: trust or
profit,,. under * 0 . the United States”? If their hen-
listed status is such a position, are any of these men
within the exceptional categories enumerated In Sec-
tion 33?
There are no judiclel authorities tn point on
the first question, ‘The Carnenter and’cramer, cases both
concerned commissioned officers. But this office ha8
.previously held that Section 33 prohibited payment of
twelve days 1’“vacation pay” to an enlisted man who was
“drafted for service in the United States Army” from
State employment 0 Attly Gen.Cp..G-3335 (1941). After
quoting Section 33, that opinion concludes:
``ItFrom the above It Is clear, without
argument; that sunless a man falls within
o*~e,$f