Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 22, 1978
JOHN L. HILL
Attorney General
Honorable Bill Clayton Opinion No. H-1304
Speaker of the House
State Capitol Re: Whether a member of the
Austin, Texas 787ll legislature may be employed by
the federal government.
Dear Speaker Clayton:
You ask:
1. May a member of the legislature be employed by
the legislative branch of the federal government and
receive a salary?
2. May a member of the legislature be retained on a
contract for services by the legislative branch of the
federal government and receive payment for services
rendered?
3. May a member of the legislature receive federal
funds indirectly as the officer of a corporatibn when
that corporation is the recipient of a federal contract
payment or grant?
The last sentence of article 18, section 40 of the Texas Constitution
reads:
No member of the Legislature of this State may hold
any other office or position of profit under this State,
or the United States, except as a notary public if
qualified by law.
We believe it is clear that a legislator may not be a salaried employee
of a branch of the United States government.
Your other two questions involve legislators who directly or indirectly
contract with the federal government. There is no specific prohibition in the
constitution against a legislator contracting with the federal government.
P. 5133
Honorable Bill Clayton - Page 2 (H-1304)
Attorney General Opinion H-698 (19751. The only issue would be whether the
language of article 18, section 40 relating to “position of profit” covers contractual
relationships.
The Texas courts have not had occasion to construe the “position of profit”
language in article 18, section 40. A virtually identical phrase in the Alaska
Constitution was interpreted by the Supreme Court of Alaska. That court
concluded that a position of profit was a salaried nontemporary employment.
Begich v. Jefferson, 441 P.2d 27 (Alaska 1988). The California Supreme Court
determined that a “position” connoted an employment to render service at a salary
paid periodically and did not include an independent contractor. Kennedy v. Ross,
170 P.2d 904, 908-7 (Calif. 1948). A federal district court also used the employee-
independent contractor distinction. Karas v. Klein, 70 F. Supp. 469 (D. Minn. 1947).
Several Attorney General opinions have indicated that an independent contractor
does not occupy an office or position. II. Letter Advisory No. 87 (1974); Attorney
General Opinions V-1527 (19511,V-345, &3 (1947).
Accordingly, it is our opinion that available legal authority is to the effect
that a legislator is not per se prohibited by the constitution from being an
independent contractor with the federal government. Of course, any particular
contract must be analyzed on a case by case basis to determine if questions arise
under the ethics law, article 6252-94 V.T.C.S., or the common law doctrine of
incompatibility. ,
SUMMARY
A legislator may not be employed by the federal govern-
ment, but available legal authority is to the effect that he is
not per se prohibited from entering into contracts with the
federal government. Whether any particular contract
violates the ethics law or doctrine of incompatibility must
be determined on a case by case basis, depending on the
contract and the facts of the case.
Very truly yours,
Attorney General of Texas
p. 5134
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Honorable Bill Clayton - Page 3 (H-1304)
Opinion Committee
jsn
p. 5135