Untitled Texas Attorney General Opinion ( 1943 )

-OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Bonorable XelBo~ Glaea
Dfstxiot Attorney
5t.s Judloial TGtrlot
Texarbna, T+xtu3
Dear Slsz
Your request for en reoeived enb
carefully conti%ored by this 8 quote rrQQIyour
request as foM.owi:
eady sent ti
e a?B Case Co*=-
0sitate to requoat
s, of oourses a duly
by attomsy in oaoh or
I should be dmftad $nto the Amy
as a .mlvats \rould this oroate a
vaoanoy in my offioe?
TL Zf I should go into the Army with a
,ommission aoul3 t!tle ohmgo the
ata+ of the above queotfon?
.
BoaorabLe Weldon Glass, Page 2
‘3. If I should be drafted tie 8 private in-
to the Army what would beoome of ‘the
salary’ provided for ay oif io sl
. I. . . .”
Opinion l:o. O-5039 of this department, ‘addressed
t.~ the State Comptroller, written by Attorney C-erierol fienn,
cmstrues the holdiw Of the 32Prem6 Court of Texfie in the
cme of Cramor vr Sheppsrd, No, 6047, delivered December 26,
lg&z (State’s EIotloo for Re-hearing overruled oh January 20,
19&3) not yet reported. We quote proa Geneml &nn’a opin-
ion ~8 r0ime: :,
*?& asatie that the members who have been
oocmiss.Soned ofTloer8 or have been anlisted mere-
ly in the ‘Army1 mentioned by you, aontenplates
thu Anny of the United States es contredistin-
&shed from the Regular Army.
“On two predlous ooaesions we have advised ’
you ai to our view of the Constitution aa related
to tho status of men in the amed foroes who hold
offioe under the state government. Cur ocmstruo-
tion OS the Constitution haa not been sustained by
the Supreme Court. In tho oases of Car enter v.
Sheppard Comptroller, 145 s. x. (2nd) ~$2 and Cra-
lper 0. sheppara (not yet reported), tht3 Supmine
Court bee plaoed a vorg liberal aonstruotion on
Seotions 33 end 40, ArtdOle 15, or our Constitu-
tion eo ea ta permit any person in the amed, Yoroea,
but not in the regular 8-d foroes, to draw & sal-
ary both froic the Federal goverment and the State.
Oti view of the Supreme Court’s opinion is strength-
eneu by the dissenting opinion of the Chief Justioe
in the Cramr oase when hs says:
“‘The majority opinion prooeeds on the
theory that our C6nstltution exempts all those
in the armed toroes OS the United states ex-
oept members of the reelar Amp. *
+W~Yoan safely’follm the Chief Sustloe of
our suprema Court when &a says what the majority
opinion in the Cramer oaae means*
Eoaorable !:‘eldon Olass, Page 3
“The oonstruotloa
of the Oonstitutlon by
our c3igreae Court is the law, and we are boun4
by oucrh oonstruotion. Theretore, we advise you
to Issue uarrante to all persons about whomyou
make &nquiry.”
fn opinion ho. O-5030 of this department we held
that, a obunty attorney who onllsts in the Army during the
present war iind nuboequently beoones an officer in tho Amy
of the United States does not vaaate his office of oouaty
attorney, baaiop, our holding therein on the Cramr v. Shep-
pard case.
%cler ,the holding of the majority opinion of ‘the
SupremeCourt Ln tho Crsner Y. Sheppard oqse we answer your
rlret and second queotlons eaoh in the negative.
Artiole 5, Seation 2&, of our State Constitution
provides, in part, as followet
It The Lo&ielature my provide for ths
elsotl&'o; diatrlot attorneys is such dietriots,
a8 IUW be deeueU neoossary. and m&e movislon
for tixe ooqwnsation or 21l;trlot at.toineys, ana
.oounty attorneys; provided. district attorneys
shanl.l~reoeive an annual salary of’ five hundred
dollars, to be mid by iho 327, supra, for your failure to attend ooiirt
in the reapeotlve counties or your dIstrlot.
Xn ankvor to your third auestion In view ot the
Cramerv. Sheppard oaoe it followa that it le solely a cues-
tion of personal propriety for you to detertine as to whether
you wish to hold your oT’2lae and draw your salary under the
facts stated. If you wish to hold the office and insist up-
on payment 0r your salary it la our oplnIon that you are en-
titled under the lay to reoelve samet
We enclose herewith copies Or opinions EOS. O-5039
mtl 0-5020, al00 a copy or the ma3orIty and dIesent& OPin-
iOAS In the Uramer v. Sheppard casei
Qery truly yours
ATTQRDSY
GEkTRRAL
OB TEXAS
.._- _- Faonl