Untitled Texas Attorney General Opinion ( 1940 )

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OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Eonorable0. H. Cmnesr
statsAudttor
AUS tin, Texar
Dear S%Fl
lolnlc under
The faaotsreflect0
letter6of JIme G, 1942, and
Tvo officers of th logmentService,ln
December,19'10, ad dura e 1941, ncceptsd em-
ployment vith a fim of the capaolty of per
son~el dimotor and am otor, reepectivolp.
Such oaapluy?BeAtvaa DC Cf PGW t833eB I
t during Christma vesk
yroll OP the Stata or
Toxafa as Assist
Texas stat0 mp
1 time by the contraotoro.
vhtch leave coatinued for periods
dage o&ch, during all of vhich time they con-
peativo eIEp~ogmeAtwith said UOAtPaCtors~
4. After retutnzlng to vork for the Texas state Enploy-
Imt Gemice each of said offlcsre VOB paid full tine end carried
oA the payroll of. euoh contrsotors as a full-tl!ae eqloyea ior
.. _
gcmomble C. X. Camem, page 0
~eversl veeka, duriq vhlch tins they vore alro paid full ttie
by the Stab.
You request our opinion as to vhsther or not the State
tiea authorized to pny the salary of aaid officers during 8~9 of
the acid perfods Of time. At, 011 of the tines above referred to
the Texas Stats Ikplo~ment ScrVlce vas a division of the Texns
TJAoapbyISent CoLIipc~SatiOAComlssion, van sn agency of the BtEte,
C& lte of’ficers and ez~ployeoe vere mployeee and agents of the
state of Texaa, by vhan they ~81’0 paid.
The Tsxarr State EqlOyPlent Servloa vas created by Actn,
1935,~ 44th La~ialnture, 9~0 552, Chqpter 236, oodified au Art1010
522w2,,v. h. a. 3+ 3act.ion 3 of ssld Article IWade PI Pollovst
‘There ia hereby created vltkin tho EMrem of
Lebor Ytatlrrtics a divloion to be l=lova a8 the Toxae
State J3wlo3rc;ont 9ervlce, responsible for adrzlnister-
ing 8 $ysttm of pubMa mploS;3ont OPClcoa for the
purpose of (rasistln~ ernplogcrs to aecw8 enplopoea,
and vorkere to mcure em@loymnt. The Comlsslo~er
of Labor .C:tatlaticB la authorized and d%reatod to es-
tablish suoh offices In cuch parts of the 3tste as he,
dean8 noceossrp &ad to 9~?%?ribo rules and rq~latloce
not incon~lsttsnt vlth sny of the 9rovlslom of this
Act.*
By hcto of 1936, 44th LeglLslsturo, Third Called %usion,
Pnge 1993, Chnpter 462# Gectlcn 12, AS umenf&U Acts 1337, 45th
Lcgtsltxturo, 9age I’D, Chs9ter 67, ~cctton 4, ‘ilre Texas state DA-
ployment 96rvLce ~a8 trcmsferrr?d to tba IJne;;ploj-nent Cmpensation
Cozamlssion 88 a divisioa thereof. Fne pertlnant part of said Act
has been oodlfLad 88 Article 5221b-10, V, A. c, s. ssid Article
readu in part aa follovsr
“(a) TeXa8 State FJqloymnt Servioa, as pmvidod
Sorunder Act of the Forty-fourth Legislsture, Rnkmsr
Ssas~on, Chwter 256, 9s`` 552, is hereby tmnsferrod
to the Comisslon ns e dirislon theraof. The Cola-
slon through such dlvisicn, shall wtabliah and main-
tain free public eEploysont offices Z.A such nmber end
in such places as may bo mcessary for the proper
admtilatratlon of thLs Act, bnd for suwoaes of por-
fozrPi.q such duties, 8s are ulthln the guvi.ev of’ the
Act of Congresr entitled ‘An Act to provide for thm
I
gonorab1e.C. 8. Cavno8s. PagO 3
e,stabSlshment of a nstlonal employment system and
pop cooperatfon with ths States In tho pronotion of
such s stem and for other, purposea, ’ approved June 6,
1933, 143 Stat. 113; USC, Title 29, Sectlcn 49(c) )
as ammdcd. It ah311 be the duty of’ the Comlsaion
to cooperate with any offialal or aScnog of the mitod
States havS.113pwors OF duties under tho pro~lslons of
the said Act cf Cagrese, ~8 asmnded, and to do end
perform all thixa necessary to eecure to this State
the benefits cf the uaid Act of Cmn?:reas, aa mended,
In the promotlcn end msintnnance of a eretea of pub110
employsmrnt off ices. The provtslone of the snld Act of
Caress, no awnclod, LWOhsroby aacapted by this
state Ln oonfomity ufth Section 4 of said Act, and
this State will observe and ccmplP with the requlxe-
ments thereof. Thu Texas Uhmplo~ont Cmpensn t ion
Cotmlssion in hezeby deslgmted and aonstituted the
agency of thirr Slate for tho purposes of astd Act, The
Dlracto, other offlcsrs 3316 eu?loymi of the Fexns
State Ewployment Sarvlce shall be appointed b7 the Cm-
nrlrslon in accor5s~ce with repalstlono pbsoribed by
the Dlreator of tho Untted States Euplogslent 3orvlce.
“(b) Pimncingr All nonLes received by this State
under the said Act of Cca;:.recs, .a amnddcd, ~hnll be
paid into the spatial %zz;;loym?nt Sorv2ce hccoxnt’ In.
t&s Uneqlqwent Cc?a~,rnsatlcn ,;dmln2stretlon Fund, and
said monies are hereby nado available to the Toxss UA-
cmpl~cysxnt Coz~eoustion Co:lni.nsio~ to be expcmdsd aa
provided by this Srctioa and by szid Act of Conjrasa,
and any uncxpehded balance of funds appropriated ar
allousted either by the State of Tcxss or the r’cderal
t.ioverf3l6ant to tk.3 ‘I’exsl3 ststo l3l;nIl1oymnt Servlcl 08 n
division of the 3meau of &bor St3tlntlcs, 1s hareby,
upon the passage of this Xot, transferred to the special
tBaploym6nt Serviaa Account in the Unemployment Cm-
pensation Mmimlniatration F‘und. For the quurpoae of’ es-
tabllahiny and iastnteinlng free publ%c employment of-
fices, t’ce Cnmioaic~ is authorized to enter into acre+
LI0AtS with nng political sukii.vlslon of this State or
vith any private, and/or non-profit or~znnlzation, and
a8 a part of w such a~rocrxmt the Ctmleslon may ac-
cept s~oniea, se~vicos, or quarters as a contribution to
the special li&.ploymnt Servioe Account.‘”
StmorablrC. 8. cbvnesa,page 4
It till be mm that the tvo mqloyek of the state
Employment Service, here under oollrsldersticn, oocupled responsible
positlone In the diacharze of vhS.ch they wore mqulred to exeroise
discretion and juWont, and, by statute, verb required to assist
en~loyees in obtaining employment. and to yist ac;ployers in
;~‘``,enployees, Ln the opcmktion of a. free public enplo*ymont
The very name8 OS tho positions held by much employees
lmlica~o that thoy vere, in a meanure, required to porfonn the
Identical service, in their second mployment, which the statute
r~qulred thm to performfor the State. For the perfo,msncs of
that ~e~vlc~ ther vere beinp; pald by the State, while at the same
tlm they wore belnS paid for such eoDloymnt by a private conown.
The recor*d ~twm5 to indicate a fclthful discharge, by saah of said
cnployeas, oi’ all the duties oved by thecl to the State as vell as
to their private employer.
The statement of hcta, houever, makes It apparent that
the two employxedte are lrmonsietsnt and lnconpatlble. such em-
ploymont roqulred the employee to reprensnt the State es its agent
on the one hcnd and the private employer, as his &Sent, on the
other. The internsto of said two ~rl.xmip``ls WOPGdlvopae, and l.n
aany Instances wore probably confliating. Duo1 a,;ency, under such
01Pcllm tnnOt?B, lo contrmy to public policy and vi11 not be pemlt-
ted.
\Ja have heretoCope hold, ‘A our Op+inlan RTO.O-~2814, a
copy of vhich 1~ enclcjaed horevlth, that a State ezployes la not
entitled to receive pry for a vacstlon not taken vh1le he is LII
the enploy of tho State. It Is equally clear that an cnployee of
the State voul.d not be entitled to receive pay for legal holidays
occurpins after the twewance of his employment tith the State.
It seems that each of said employeoe be@n vork for a private
employer abmt Deceuber 22, l$+O. It 1s our viav that vhea such
enployeo cntomd upon his private employuent, won though he be-
San such mploynent dorm a poriod dcnozln8ted the Chriatnas
R$:pdy5, hln period of oocupatlon as a State employee van tern-
Such employee MB entltlod to recofve pay from the State
of T&J for all aorvlcos rendered by hln to tho State up to the
date vhen he tomlnntod hia period of service vith the State by
accept%nS enploymant vith the private concern. Xe vaa entltled
to recelvo no further ofrm from the State, and the State vsa au-
thorized to pay no further ewn on account of his mployxent until
after the employee had been released by sold private errrploysr.
-.
591
The actton of 8al.demployeerIn acoeptlngemploymentOS
. private employer ia repugnant to the idea of COAthWd employ-
ment by the stite. It mqulred them to be iIi;BAtB of the Stnte on
the one hand and of the private employer , OA the other, under cir-
``stanaas vhere the lntormts of the two might easily be ln con-
fll.ct. 3uch 8 contract tends to corruption end 1s ncainst pub110
policy. ‘The tendency of nuch an agoement, and not the rooult
or motive, 18 declnmd to be the test of it8 legnlity.” Am3rlll0
ofi Coqmny VB. Raoh creek Ollk Oarr Company, 271 S. U. 145, vrlt
of error diemle8cd.
As said ln the c&se of Scott VS. K&o, 62 Clv, /,,pp. 163,
130 8. w. GlOt
“In all cases the princlp.yal is ontitled to the
best effort and unbiased judpent of his agent’, and
tho lav, for ~CABOAB fcundod In public policy, Sor-
bide the agent’8 assumption oT a relation vhich as-
fords temptations sntagotiatio to his duty.’
The rule-laid dOWA %A thQ CSBO Of Scott VU. lkho iB the
lav as betvsen prlvnto pwtleo. Certainly it should not be more
relaxed In a c&se vhere tho stats la one of the princlpnla. That
the agreczxnt here under oonaideratl.on io aczlnst the public policy
OS thie state Is veil aettlod. City OS Edluburz vs. Elllo, (03~.
Of App.) 59 3. N. (2d) 39; !%iniken Vs. PO!:Bs, 15 Tex.~ 1208 Will&,
VB, hbbey, 27 TQX. 203; DC&OA vs. h%lto, 9 Tex. 598. V:e same
rule Is announced in Unltad Staten vs. Cwter, 217 3. 3. 286. The
Follovlng pertinent quotrrtlon 1s taken Sxwm the Crrlifornla case
Of Stockton Plmbing & Supply Company vs. wheelor, 229 P. 1020r
‘!I% prLnclpte upon which public officers am
denied the right to make contracts in their ofSlcln1
capacity vlth thenoelves or to be or become lntexxt-
ed In contrxto thus made Is evolved from the salf-
evident truth, es trite and inpregwble 08 the lav of
graVit&tian, that no psrson cnn, at on0 and the swe
tine, falt&%llg Eerve two masters rcpreeont~ di-
VOPBO or inOOASiBtt3At iAtWaEtS Vith respect to the
eorvico he performs. The prinoiple h%s nluape beon
one of tho esfientia]. attributeS OS every rst5.0~1 BSB-
ten OS poeltlvo l&v, even reaching to private ocntraoe-
ual tmnscotioas, vhoreby there are oreoted between
S.ndivldualo trusts or Siduolary relations. The voice
592
@nOrPbl@ C. H. Cavneq Pago 6
oS Clvlnlty, spaakiag from wlthLn the subllxmst ZA- 1
carnation ~AOVA to all hlistory, proclnlmed and em-
phasized the mixin! nearly two thousandpeora ago OA .
oooationaof lnSlnlte83m3dne8s.’
We 0On0bde that SincO it iB COAtl'Wy to the publlo
p~llcy of this ztata thut lta ogento should, at the asrw U&e,
~pm86At IA the same C3pGOlty, Othdr p~h~ipals oS diverse in-
tsMst,s, for the statedre38on thzkt no 6mn a&n serve two maatera,
vhcn eopiopnent vao accepted by such employees, aa agsutsof the
oontractons, thGy ae%w3 to be et~ployoae of the State OS Tes88,
6~d thnt such en$oyaor uere not entitled to recel?re any elzlary
Srcnr the Stcrto OS Texa6 at any time aubsaquucat to the d3te of their
accoptanoeof such ez;?loymmt , until they had acwsd to be m FEZ-
ployed. hoaordln;;lp, VQ hold th3t such dusl engloymmt ~8~shigh-
ly mroper and that ft should never have Imen petitted, Aor
should .%ny oomper?BaticA b5Ve been aaid to asid sl;ployees by the
State, durbg my of the pall&n af tine shout vhlch you Inquire,
if the f3ote were knovn to the disburoS.ng OffiC0l'B.
ATTO~ 0-m OF TEXA3
m3d& Fowler Rbberts
Assistant