Untitled Texas Attorney General Opinion ( 1944 )

, THZ ATTORNEY OBNBlAL OF TEXAS Austin, Texas Honorable YllllslnM. Whyburn, President Texas Teehnologloal College Lubbock, Texan DearXr.Whyburnr Opinion No. O-6232 Rs: Whether or not the Presl- dent ot the Texas Techno- logleal College may ale0 serve as Chief of the Operations Analysie Sea- tlon (U.S.) and Inalden- tal que8tlon8. owebeg to aaknowledge receipt of your letter aa f011ou81 ."I,should like to request a rul+ on the foli&w%ng,P*tter. 'On S8pt8mb8r Zlth, 1944 I amum& my duties M Presldont of the Texae Te&nologlaal College and uu plaoed on the,offialal payroll of that in8titution. Prior to that time I held an ex- oepted appolntunt with the IS.3. War Department U an 8x@ert wmfmltant with speoIfIa aanlgrnnent a8 Chlei, Operation8AnalylrlsSMtlon, Head- quartern, Third Mr Porce, TEapa. Florida: Can- pansatlon ?or thlr earvIce wae on a baa18 of $25.00 peLetifor eaah day on which aatual servlae WM The haraoter of the remlees rendered unde+ thilr appolntnumt and the diffioultp of'find- ing a suitable replamnent for me makes neaeerrary the oontlnuation of the above named War Department appointmentuntil suah a t&me as Its dIsaontInua- tion Is Indlaated by the Air Foroes. *It Is expeated that be@nnIng with the month of Ootober there will be several days out of each month when I aan be away from my duties at this uollege for servloe with the Third AU? Forae. Par Such days It i8 proper that I rWeiVe COC4phlratiOn Honorable Wlllima X. Whyburn - Page 2 from federal fund8 and rooordinglythat I not receive oollega funda. I am aware of the Texas ConatltutlonalprovI8lon aoverlng this eituation. It Is my lrtrongdesire that the portion of ay State salary thus released be added to the fund8 of the Texas Teahnolog- lcal College. Slnae oertelnof my dutIe,shere will need to ti perfonued by othem, and any saarlflae of 8erviae due to my ab8enae will be made by the College itself, It 18 my hope that the adjustment oan be made through my making a refund to the~College of the exact amount paid to me.as college 8alary for the daye when I am serving the War Department. Ray I requeet a ru&y from your offioe on the legality of euoh xn order to alarify a8 muoh as pOS8i- ble thi nature ot mu amoIntment with the War Department,1 IDIenim&ag eert8in oonfldentlal doawmnt8whlah I hope c\anb8 return8d ror my use later." Sactim 40 or Artfale %VI of the Constitutioncon- taln8 the miairyt "#o parmn +a.ll hold or exerdse, at the 881DLItime, mora tnan ona CrlvIloffice of ealolu- ment, except that of Jwtlc8 OS the Peaoe, County Ccwlssloner, Rotary Publie end Poetmuter, offi- cer OS tha National Ouard, the National Quard Re- caex!ve,and the Offleers Re8erve Corps o? the United States and enlisted men of the National Ouard, the National Guard Rmerve, and the OrguriaedReservea of the United Staten, ,@ndretired ol'fioersof the United States Anay, Navy, andUrIne Oorpa and re- tired Warrant 0??108r8, and rt#tfrcrdttnli8t6dn8n of the United Stator Amy, Navy, and Rarlne Corps, unless otherwise epeolallyprovidedherein. * * l)" Se&Ion 33 OS the seme Artlole dealeresr "The aaoounting offiaem4 of this State ahall neither draw nor pay a warrant upon the trea8uzv In Savor OS anfper8on, for salaryor aompen8atIon as agent, oiilaer or appointee,who holds at the mne time any other offloe or position of honor, trust, or profit, under thla State or the United zttt:"(J,,, exoept am presorlbed In this ConatItutIon. Honorable William U. Whyburn - Page 3 It would appear that the position of Chief, Operations Analysis Section, with the U. 8. War Uepart- ment Is an offiae of emolument. The appointment18 made under Section 9 of the ~llltary AppropriationAct of 15444 for an Indefinite period. The appointee is required to take an oath of office, and enter upon duties before any psyaent of salary can be made. The salary stipulated is $25.00 per biem. Moreover, the $utles of such Chief are defined by law. These faute taken from the documents accompanying your letter appear to present the Indicla of an office as cmntra-dlstlngulshedfrcm a mere position of employment. But whether suoh position be an offlao, we need not to de- cide, since it alearly appears~that the same is a *position of honor and trust" under the United States, withIn the meaning of Section 33 of the Constitutionabove quoted. This being true, it is clear the %nstltut1on for- bids the drawing orpaymento? anywam?antuponthetreosurg in favor o? yourself as President of the Texas Technologiti College lshileyou eontlnue to hold the position of Chle?, Operations Analysl.8 Se&ion. ~l!he:e?fecto? Seotlon 33 is to:gorbId paymeet out of the khte Treasury in such a&se, rather than to~imply a vaoatlon of the office or position. Themany rulings by this deprrtamt hark baak to an opinion by Mrst Assistant Attorney Oeneral Cureton, later &Ie? Justice; holdln$ that LIeutenant Governor -8s could not be paid his 6alary while he held at the 6ame time the position of teachor of (OpMOn8 o? Attor- ney Cieneral,1.912-1914,p. The following resent opinions by this department till1show the frequent reautinae o? the question, and will also illustrate the respeutive faatual situations lnvolvedr No. O- (atate Health Offloer and Speolrl Agent Mau of Cemus f 5" No. O-1421 (State Q??iaer and Deputy Game Warden of U. 8. without pay); No. o-2388-~ (*ployee Livestoak Sanitary Camala- 81On and employee Predatory Axliasal DiVi8iOn Of the Bureau of Biologleal MvI8lon of the U. S.)I No. O-2607 (Physiaianemployee of two State In- stltutlons); Honorable Wllllam N. Whyburn - Page 4 No. O-2701 (Old Age Pension Investigatorsnd member Board of Trustees of IndependentSahool District); No. O-2769 (State employee snd National Ouards- man holding an offiae or position of trust in the active seTviceI; No. O-3061 (An opthtiologist employee of State ,eleemos axy InstltutIonand also of Departnent Public Welfare"r" 1 No. O-3788 (Mreator of DIvlsion Department of Health and part-time employee of Division of Department of Rducatlon); No. O-3693 Dlstrlet Attorney and inductee in the Army of the U. S. I; No. O-3542 (State Representative'and loyee of -5 ; Federal Government as printer at Fort San Houston No. O-3335 State employee and dra?tee under Selective service Act I; No. O-2991 (X8mber-d-o? Mreetors, Texas '%ille$e of Arts and Industries and County Superintendent of Public Instruotlon): No. O-3045 (Inwstlgtor for State Board of Wedlcal RxawIners and spealal Ranger): No. O-4902 (Baployeeof State-owned oollege and employee of a sahool district part-time basis)~ No. O-4908 Rnployee'teacherof A. & R. College and City CcmmlsslonerIf No. O-4562 (Head of Department of Oenetlcs, A. Q n. College and member State Seed and Plsnt Roard)i No. O-4433 (Teachersof publla rchool system of Lubbock County and praotlae teachers for Texas Technological Oollege); No. O-4 3 (State Representativeand Induutee in Anay of the U. S.Y-j ; No. O-5107 (DistrictJudge snd Public Wember Regional War Labor Board): - HonorableWill.iam N. Whyburn- page 5 to the Senate and No. O-5123 (ParlIementarlan mployee of Old 0 AssistanceMvision, stat0 Departaent 7 f of Pub110Welfare No. O-5157 o&emberBoard of Re@ntS Texas State Teacher8Collegesand employee.ofan independentsahool distrlot); No. O-%3 (Pre8Ident,Collegeof Nine8 and Metal- lurgy and PublicPanel Member of ReglonalWar Labor Roard)~ No. O-5317 (StateRepresentative and employeeof a State Department); No. O-5369 (Mreotor CountyHealth Unit and part- time MedicalExaminerfor hospitalestablishedby State Departmentof Health in cooperationwith the Federal 4loverment): No. O-5281 (Desnof the ilhitnrsity of Texas Dental School and member State Board of Nealth)j No. O-5525 (Gonsultantto State.HeilthOfficer and teauherin State Nedlcal School)$ No. O-5608 (IDrployee atate D8partmentof i@rI- cultureandmember PpMcRoll Worm Cami8sion). Our ~oml~sIon In this case 18 supported by the abow opinions. The dooments mentionedby you am herewith retuned. Very truly youm, ATTORNX OWHRAL 08 TEXAS Ilp /a/ g;z zet Assistant OS-m Nnclosure