Untitled Texas Attorney General Opinion ( 1943 )

TEE ATTORNEY GESEHAL OP TEXAS Ronarable Hohghton Rromnlee, Chairmen Committee on Governor's Nominations The Senate Austin, Texas Dear Senator Brownlee: Opinion No. Q-5157 Re: mether or not the fact that Mr. Mills is an employee of the Houston Independent School Distriot disqualiflee him from holding membership on the Board of Regents of the State Teaohers' College. we-have your request of Xaroh 23, 1943, as follma: "At the request of the Senate of Texas and as Chairman of the Committee on Governor's Nomi- nations, I am directed to submit to you the fol- lowing question: WC. Hubert L. Kills has been appointed by the Governor as a member OS the Board of Regents of the State Teachers Colleges. Mr. Mills is an employee of the Houston Independent Schools, serving in the capacity of Business Ranager and not as teacher. "Does the fact that Mr. k~8.11~ is an employee of the Eouston Independent School District dis- qualify him from holding both that employment and membershi on the doard of Regents of the State Teachers E olleges?s Seotion 40 of Article -m of the Constitutionwith respect to dual office-holdingis of no importance in the con- sideration of your question. That Section declares that "No person shall hold or eX8rCis8*8;ttthe same time, more than one civil Orrice of emolument, , with certain exceptions not pertinent hers. It has been uniformly held that where a person, hold- ing one oivil office 0r emolument, acaepts another civil offioa of emolument,he thereby Ipso faoto vacates the first orrioe upon entering into the second. So that, Section 40 does not prevent the appointment of Rr. Mills, or his acceptacne, of the position as a manber of the Board of Regents of State Teachers' Colleges, in any event. Section 33 of Article XVI of the Constitution deals a Hon. Houghton Brownlee- page 2 with a quite similar situation, but it arrsots only the right of compensation by the State. That Section deolares: "The aooounting orriaars or this State shall neither draw nor pay a warrant upon the treasury in favor 0r any person, for salary or compensationas agent, officer or appointee, who holds at the same time any other oifioe or position or honor, trust or profit, under this State or the United States, except as aOO0idbOa in thia Oonstitution.* The situation presented by you does not come wlthin any at such eroeptiona. It will be noticed this Section does not forbid the holding or such dual offioes or positions or honor, trust or profit, under the State or the United States, but it does tor- bid payment by warrant upon the treasury in favor of suah per- son for sulary or oompensationwhatsoever. The prohibition of pepment in a oase coming within that Section applies to both positions. Suoh a person oan draw pay from the State treasury for neither of suoh positions. (See Opinion No. O-5123, oopy herewith). So that, answering your question specirlaallg,we beg to advise that the fact that Mr. Mills Is an employee of the Houston Independent Sohool Dlstrlot does not diaqualiry him from holding membership on the Board of Regents of the State Teachers' Colleges. Employment by the Houeton Independent,School Dis- trict is not an offlce, but it la a.position ti honor, trust, and probably of profit; but the position of membership on the Board of Regents of the State Teaohers' Colleges is an orrice, under the law, within the meaning of Section 33, So that, while there is nothing forbidding Mr. Mills to hgld and exeroiss both the position of employee and the orriae of member of the Board of Regents at the same time, but in no avent nay the aooountlng officers or the State issue or pay a warrant to him as salary or compensation whatsoever as a member of such Board of Regents. Very truly yours ATTCRNE!fG?6NBRfiOF TEXAS By /a/ Ooie Spaer . Assistant i%'k%ibMAR. 26 1943 /a/ Gerald C. MaAn AE'ROVRDOPIRIOaCObMlTKS ATTORNEY GENERAL OFTE?XS BY BWB, Chairman