Untitled Texas Attorney General Opinion ( 1948 )

EA o=my GENERAL OIFTEXAS AWSTIN 11. -l?ExAs PRICE DANIEL ATTORNEY GENERAL December 16, 1946 Hon. C. HI. Cavness Opinion No. V-740. State Auditor Austin, Texas Re: The legality of full- time salaried State employees also being Justices of the Peace or ?veathermenfor the Federal Government. Dear Sir: Your request for an opinion by this office upon the above subject matter is as follows: 'In our audit of the accounts of one of our State institutions we have found that two full-time salaried employees are holding at the same time other posi- tions as follows: 1, Justice of the Peace 2, Weatherman for the United States Government "We understand that both of these are only part-time arrangements that do not interfers with the respective State Sdtl-time jobs, but we believe we should ubprr opinion as to whether sithsr or both of these instances are in conflict with the provisions of Section 33 of Ar- ticle 16 of the State's Constitution." Section 33 of Article XVI of the Constitution contains the followingt 'The Accounting Officers of this Stats shall neither draw nor pay a war- rant upon the Treasury in favor of any person, for salary or dompensation as agent, officer or appointee, who holds at the same time any other office or Bon. C. He Cavn48s - Page 2 (V-740) position of honor, tru&t,or profit, qua- der this St&e or the Unit,eclStates,:ex- c4pt a4 prescribed in this ConstltutiB 0 0 0 Section 40 of Article XVI rays that* "No person shall hold or Ursroise, at the nmue time, n1or4 than one 01~11 offioo of emolument, except that of Justice of Paace. o aw A Justios of Peace is one 6f.those officers referred to in Section 33 whers it says no persons shall be paid out of the Trsasury who hold another of- fice or position,, . D "except a,spresoribed in this Constitution.w The Justice of Peace, therefore, may hold both positions under Section 40 and be paid under Section 33 as a State employee as an express exception. It is assumed that no question of incompatibility is involved, Your letter doas not give the facta as to the nature of the employment of the U. S. Weatherman. If he is simply an unpaid observer who holds no posi- tion of honor or trust, he is entitled to his stat4 pay under Section 33, On the other hand, if he holda 3 federal appointment which is one of honor or trust, or.one which carries remuneration, ho nay not be paid from the Treasury for his state job, Section 33 says plainly that a state employee may not be paid from the Treasury "yho holds at the 'same time any other office or position of honor, trust or profit under this stats or the United States," Similar rulings have been re- quired by Section 3?iwith regard to other state employ- eea who simultanaously hold federal jobs: Agent of C,ensusBureau (O-58); U4puty U. S. Game Warden (O-1421); U..5, Government printer (O-3542); Viar'LaborBoard (O- 5232); civil 44rvio4 job (O-5317 and O-7813), Enclos- ed is a copy of Opinion q-6232 which oitos mm-q of these opiniona. The office of Justice of Peak4 is ex- pressly exempt in 84ction 40 of Article XVI, ,Texas Constitution, which prohibits the holding of more'than one offloo; A Justice Hon. C. B. C*Gesr - Page 3 (V-740) of Pease may hold another civil offioe WI- der Section 40 and be paid under Section 33 of Artiole XVI for his servicer a8 a 8tate officer or empl.ogse. Section 3'3 ex- empt8 from its application those office8 also exempt elsewhere in the Constitution, including Section 40. (No question of in- compatibility involved,) The accounting officers of this State may not pay a state employee from the Treasury who holds at the same time a posi- tion of honor, trust, or profit with the u. 9. Government. If the U, 9, Weatherman in quertion holds such a position he should not be paid for his state employment. If he is rimply an unpaid observer, who holda no appointment, Section 3.3has no applica- tion, and he may be paid for his state em- ployment. Art. XVI, Sec. 33, Yours very tNlg, ATTOFNEX Gl37ElW QF TEXti 08;era:wb