Untitled Texas Attorney General Opinion ( 1939 )

Honorable Otto Studer, Chairman
Industrial Accident Board
Land Office Building
Austin, Texas
Dear Sir: Opinion No. O-l&l
Rf?: Whether a Deputy Gems Warden of the
United States holds a Federal position
of honor or trust.
We have for acknowledgment your letter of October 19, 1939,wherein you
request the opinion of this department upon the question whether a State
officer who holds an appointment as a Deputy Game Warden of the United
State, without pay, and who received his appointment prior to the tima
that he took office as a state official,, would come under the payroll
affidavit now required by the Comptroller, which reads as follows:
I,
. . . and that none of the employees on this payroll are
receiving salary or compensation as agent, officer or
appointee, who holds at the same time any other office or
position of honor, trust or profit, under this State or the
United States, except as prescribed by the State Constitution, ...'
The foundation for the affidavit required by the Comptroller is Article
16, Section 33, of our Costitution, which reads as follows:
"The accounting officers of this State shall neither draw
nor pay a warrant upon the Treasury in favor of any person,
for salary or compensation 8s agent, officer or appointee,
who holds at the same time any other office or position
of honor, trust or profit, under this State or the United
States, except as prescribed in this Constitution. Provided,
that this restriction as to the drawing and paying of warrants
upon the Treasury shall not apply to officers of the National
Guard of Texas, the National Guard Reserve, the Officers
Reserve Corps of the United States, nor tb enlisted men of
the National Guard, the;National Guard Reserve, and the
organized reserves of the Unites States, nor to retired
officers of the United States Army, Navy, and Marine Corps,
and retired warrant officers and retired enlisted men of
the United Stetes Army, Navy, and Marine Corps." (Section 33,
Article 16, adopted election November 8, 1932.)
Hon. Otto Studer, Page #2 (O-l&l)
“An analysis of the above quoted Section of the Constitution
results in the following: That the accounting officers of
this State are prohibited from drawing or paying a warrant
upon the Treasury in favor of any person for (a) salary, (b)
compensation; as (1) agent, (2) officer, (3)appointee, if
such person at the same time holds any other (1) office,
(2) position of honor, (3) position of trust, or (4) position
of profit, under this State or the United States." (See opinion
by Hon. C. M. Cureton, First Assistant Attorney General,
end Hon. C. W. Taylor, Assistant Attorney General, Reports
end Opinions of the Attorney General, 1912-1914, p. 873,at
P. 880.)
Deputy sheriffs are held to be public officers. 34 Texas Jurisprudence
601; State vs. Brooks, 42 Tex. 62; Brown vs. Harris, 13 Tex. 50‘7,5l2;
Feller vs. Alexander, 13 Tex. 497, 506;Murray vs. State (Cr. App.), 67
S. W. (2d) 274. By enelogy, it would seem clear that e Deputy Game
Warden of the ~UnitedStates is en officer of the United States, within
the meaning of Article 16, Section 33, quoted shove.
Whether e Deputy Game Warden of the United States is teachnically en.
officer, however, it, in our opinion, cannot be disputed that e Deputy
Game Warden of the United States holds a position of honor end trust
under the United States, thou& no salary or compensation be attached
to the position.
In answer to your question, therefore,you ere advised that e State officer
who holds en appointment as a Deputy Gam..~.Wardenof the United States
without pay, at the same time that he holds his office under this State,
is within the purview of the payroll affidavit required by the Comptroller.
Youri very truly
ATTGRNFXGHNERALOFTEXAS
s/ R; W. Fairchild
By
R. W. Fairchild
.Assistent
lNXF:pbp/cc:ldw
APPROVED Oct. 25, 1939
s/ GERALD c. MANN
Al%XUiEYGHNHRALOFTEXAS
APPROVED OPINION COMMITPRR
BP B. W. B.
CHAIRMAN