Untitled Texas Attorney General Opinion ( 1953 )

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THEAYTORNEY GENERAL
OFTEXAS
August 31, 1953
Hon. E. H. Thornton, Jr. Opinion No. S-94
Chairman
State Hi way Commission Re: Service of members of the
Austin 1$h
, Texas State Highway Commission
as ex-officio members of
the Texas Turnpike Authority
as provided in House Bill 4,
Dear Mr. Thornton: Acts 53rd Legislature.
You have requested an opinion in regard to cer-
tain portions of Chapter 410, Acts of the 53rd Legisla-
ture, codified in Vernon'.sas Article 6674v, V.C.S., which
creates The Texas Turnpike Authority. Your specific ques-
tions are as follows:
"1. Can we serve ex-officio as a Member
of the Board of Directors of such Authority
without violating either Section 33 or Sec-
tion 40 of Article 1.6of the Constitution of
Texas?
'2. Since each of;us has already taken
an oath of office at the time we qualified
for our respective positions on the Highway
Commission, are we required to take an addi-
tional oath as ex-officio members of the
Board of Directors of the Toll Road Author-
ity? If we are so required, would we then
be h~oldingtwo offices in violation of either
of the Sections of Article 16 of the Consti-
tution of Texas aforementioned?
"3. Are we, as ex-officio members of
the Board of Directors, required to file a
surety bond in the penal sum of $25,000.00?
If we are so required, would we then be hold-
ing two offices in violation of either of
the Sections of Article 16 of the Constitu-
tion of Texas aforementioned?
. .. .
Hon. E. H. Thornton, Jr., page 2 (S-94)
"4. If we are required to execute a
surety bond in the penal sum of $25,OOO,OO,
will we, or any of the appointed Directors
of the Toll Road Authority, be required to
execute such bond prior to the time any
Turnpike Revenue Bonds, under the provisions
of House Bill No. 4, are actually issued?
"5. If we are required to execute a
surety bond in the penal sum of $25,OOO.OO,
should we do so in our capacity as ex-officio
Members of the Board of Directors of the Toll
Road Authority or in o'urcapacity as Members
of the Highway Commission?"
Section 3 of Article 6674~ provides that each
member of the Texas State Highway Commission shall serve
ex-officio as a member of the Board of Directors of the
Texas Turnpike Authority. Such section provides in
part:
'The Legislature imposes on any Director
who may be a member of the State Highway Com-
mission the extra duties required hereunder."
The ex-officio duties of the,members of the
Texas Highway Commission sre'additional duties required
to be performed by such officers without additional com-
pensation. Therefore, acts of the ex-officio members
of the Board of Directors of the Texas Turnpike Author-
ity are by virtue of the duties imposed on Highway Com-
missioners. The act does not create a separate and
distinct office insofar as it applies to such members,
and Sections 33 and 40 of Article XVI of the Constitution
of Texas have no application. Jones v. Alexander, 122
Tex. 328, 59 S.W.2d 1080 (1933); Eucaline Medicine Co.
v. Standard Investment Co.; 25 S.W.2d 259 (Tex.Civ.App.
error ref 930 ; Irwin v. State, 147 Tex. Crim. 6, 177
S .W .2d 9'$(:&+ . Therefore, the performance of such
ex-officio duties would not violate the provisions of
Sections 33 and 40 of Article XVI of the Constitution of
Texas.
The Constitutional oath required of the ex-
officio Directors of the Texas T~urnpikeAuthority is the
same oath that such Highway Commissioners have already
Hon. E. H. Thornton, Jr., page 3 (S-94)
taken. Therefore, it wo'uldbe a meaningless thing to
require them to again take the same oath upon assuming
their additional duties. Furthermore, as stated above
the members of the Texas Highway Commission hold only
one office.
The statute is plain that each Director shall
execute a surety bond in the sum of $25,000 "before the
issuance of any turnpike bonds." Since this bond is
conditioned upon the performance of the additional duties
and is separate and distinct from the bond executed by
the Highway Commissioners under Article 6664, V.C.S., a
Highway Commissioner would be required to execute such
bond before the issuance of turnpike bonds. Such bond
should be executed as Director of the Texas Turnpike
Authority in compliance with Section 3 of Article 6674~.
SUMMARY
Members of the Texas Highway Commission
are ex-officio Directors of the Texas Turnpike
Authority. The performance of such duties by
them does not violate either~Sections 33 or
40 of the Constitution of Texas. They are not
required to take an additional oath but are
required to execute a surety bond in the sum
of $25,000 before the issuance of any turnpike
bonds.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General
J. C. Davis. Jr.
County Affairs Division
W. V. Geppert kves
Reviewer v- .I/
Burnell Waldrep ~4Ei-yxd;4-
Executive Assistant Assistants
John Ben Shepperd
Attorney General
JR:EG:am