Untitled Texas Attorney General Opinion ( 1947 )

_.
. -
R-1003
Auwrxr 11. -rExA=
PRICE DANIEL
ATTOR?aEY
GENERAL
December i3, 1947
Mr. John W. Newton,
Member Board of Directors,
Texas A. & M. College,
P. 0. Box 3311,
Beaumont, Texas opinion No. v-462
Re: Whether a Member of the
Board of Directors of ’
A & M College holds an
Office of Emolument.
Dear Mr. Newton:
In your letter to this department you state
that the State Auditor has questioned the legality of
Your serving simultaneouslyon the Board of Directors
of both Texas.A. & Mb.College and the Lower Heches Val-
ley Authority, in vierrof Seotion 40 of drtlols 16 of
the Texas Constitution.
That article provfdes in part:
“No person shall hold or exercise, at
the same time, more than one civil office of
emolument . . . .v(Rmphasis amtK&oz
this opinion.)
Unquestionably,both of these positions on
the Board of Directors are “civil offices.” It will be
so ‘assumedfor the purposes of this opinion. But the
oonstitutlonalprohibition is not simply against the hold-
ing of two civil offices. To come within that Article the
positions must be offices of emolument.
The rule is stated in 34 Tex. Jur.,
349, Public Orfloers, Sec. 17:
“The Constitution applies only to of-
fices 0r emolument. fEmolument( means a
profit, gain or advantage;hence
the same II= may hold two civil offices
where
whew- no
_ pay, oompensationor pecuniary gain
attachei to one of them, provided they are
attaches
not lnCom~.rurwo
lncompatibleon
.
- I
m. John W. Newton - Page 2 (V-462)
The rule is similarly stated in State v. Mar-
tin, (Civ. App. 1932), 51 S. W. (2d) gl5, whme rmt
ran individual to hold the offices of school ,trusteeand
tax assessorwas ohallenged:
"The constitutionalprovision does not,
per se and as a matter of law, prohibit a
person from holding the office of aohool trus-
tee while also holding another pub110 office,
for the simple reason that that provision a
plies, arbitrarily, only to lcivil ofrice(sk
of emolumemt,1~whereasthe offioe of trustee
of the Laredo independentschool district is
not one of 'emolument,*since the holders
thereof 'shall serve without compensation.'*
See also Graves 1. M. Griffin O'Nei,l& Sons,
189 S.W. 778. Thomasnernan Count- Line.-ST
;?78S. W. 312' rev. on-otdd&t%m.Gere
incompatible):290 S, W. 152; and Attorney General's Opin-
ions.O-1422and o-2991.
.Y
Since the statute creating the LowerNeches Riv-
er Authority provides that the members of its Board of Direc-
tors "shall receive as fees of office the sum of not to ex-
ceed Ten Dollars ($10.00) per day for each day of service
necessary to discharge their duties," that ofiice is one of
emolument. Acts 43rd Leg., 1933, 1st C. s. p. 169; 21 V.C.S.
581; Opinion O-490.
However, Article 2612 R.C.S., with reference to
A. &M. College, provides:
"Said Directors shall serve without com-
.pensation,but shall receive actual expenses
incurred in attending said meetings or in the
transactionof'any business of the College'im-
posed by said Board."
Since the Statute expressly provides that such
direotors shall serve without oompensatlon,the provision
for mere reimbursementof aotual expenses does,not make the
orfioe one of %nolument.*
The.term "emolument"has been derined as mean-
ing "peouniaryprofit gain, or advantage." Irwin v. State,
(Tex. Grim. App. 19443 177 S. W. (26) 970. BouviiirvsF
Dictionary derines wemolumentwas "The
offioe or employment;that which is
for services, or whioh is annexed to
. .
. -
\
Mr. John W. Newton - Page 3 (v-462)
Webster's New InternationalDiction-
$ywid: &ibi;dged) defines wemolumentwas'"BrOfit
from ofrioe, employment, or labor; compensation,fees or
salary."
We therefore hold, and you are so advised,
that sinoe the of'ficeof Director of A. & M. College is
not one of "emolument,n the'statute expressly providing
that such directors shall serve "without compensation."
You may therefore simultaneouslyhold that office and ~the
office of Director of the Lower Neches Valley Authority.
However, since both directorshipsare offices
of honor and trust. YOU may not be paid from the Treasury
~~~~,~h~~ot~,t~e~~.~~c~~~n,“,‘~~~e~~
bursement for salary or expenses from either offiae, it
Is not necessary to here decide whether "expenses".oome '
within the terms "salary or oompensation,"as used in Seo-
tion ~33 of Artiole 16. That article reads:
"The accounting,officersof this State
shall neither draw nor pa'ya warrant upon the
treasury'infavor of any person, for .+
salar -or
oom ensation as agent, officer or appo n ee,
W* the same time any other office or
position of honor, trust or,profit under this
State. . . ."~
SUMMARY
Membership on the Board of Directors of.
A. & k4.College, while constitutingan office,
is not an "office of emolument,w sinoe Article
2612 expre&ly provides that such members shall
serve "without compensation." Hence one per-
son may serve as a member of the Board of Dire+
tors of A. & M. College and the Lower Neches
Valley Authority. Seotion 40 of Arti 16. How-
ever, the Bcoounting officers of the State may
not issue a warrant in his behalf for salary or
omapensationwhile such person holds both offices.
Section 33 of Article 16.
Joe R. Greenhill
fgig!q&!&t
JRG:wb
Executive Assistant