Untitled Texas Attorney General Opinion

IFCNEU GENERAL
OF TEXAS
December 4, 1969
Honorable Charles R. Barden, P.E.
Executive Secretary
Texas Air Control
CL_._-. Board
1100 West 49th Street
Austin, Texas 78756 Opinion No.M-532
Re: Eligibilityof faculty
member of Texas Tech to
serve on Texas Air Control
Board and receive per diem
Dear Mr. Barden: and actual expenses
Your request for an opinion reads in part as follows:
"GovernorPreston Smith has appointed
Willie Lee Ulich, Ph.D., of Lubbock, Texas
as the agriculturalengineeringmember of
the Texas Air Control Board for a two (2)
year term to expire August 30, 1971.
"Dr. Ulich Is Professor and Department
Chat- of the Agrldulttiegngi.he@tiltig
Department,Texas Tech University,Lubbock,
Texas.
"Since Dr. Ulich Is an employee of the
State of Texas, we are requesting an At-
torney General-Opinionto redetermine:
(1) Whether Dr. Ullch is eligible to
be a duly qualified member of the
Texas Air Control Board.
(2) Whether Dr. Ullch is eligible to
receive the $25 per day salary and
reimbursementfor actual travel ex-
penses In performing offiaial duties
as stated In Senate Bill No. 48, Acts
of the 61st Legislature,Regular Ses-
sion, and under the provisions of
-2533-
Hon. Charles R. Barden, P.E., page 2, (M-532)
House Bill No, 2, as passed by the
61st Legislature,Second Called
Session."
Before answering your questions,we note that while a
professor in Texas Tech University Is a state employee, he
does not hold an "office". See Opinions C-550 (1965 and
M-297 (1968). Tilley v. Rogers, 405 S.W.2d 220, 224 tTex.
Civ.App. d+, error refused n.r.e.). Onthe other hand, a
member of the Texas Air Control Board, who has been appointed
and confirmed,occupies the status of an "officer"even though
he receives only a $25 per diem and his actual expenses for
attendance at board meetings. This Is so because the Legls-
lature has committed to the Texas Air Control Board the govern-
mental duties of abating air pollution within the State of Texas
and the decisions as a voting member of such board constitute
the exercise of a part of the sovereigntyof the state, whether
great or small, and whether made with or without the receipt of
compensationtherefor. Kimbrough 93 Texi 301, 55
S.W. 120 (1900).
The status of Dr. Ulloh must be determined by consldera-
tion of Article XVI, Section 33, Constitutionof Texas, as
amended November 11, 1967, and of Artlole 6252~ga, Vernon's Ci-
.vil Statutes, said statute having been enacted as Chapter 20,
Acts of the 61st Legislature,Regular Session, 1969 (H.B. 102,
page 55), taking effect September 1, 1969. Under the Constitu-
tional Amendment, it is provided that a non-electivestate offf-
cer may hold other non-electiveoffices or positions of honor,
trust, or profit under-this State or the United States where au-
thorized by the Legislatureby general law. Pursuant thereto,
Article 6252~ga was passed and provides in part:
"Sectfon 1. A nonelectfve state offfcer or
employee may hold other nonelectiveoffices or
positions of honor, trust, or profit under this
state or the United States, If his holding the
other offloes or positions is of benefit to the
State of Texas or is requfred by state or fede-
ral law, end if there Is no conflict between
hfs holding the office or position and his hold-
ing the original office or position for which
the officer or employee receives salary or com-
pensation,..
"Sec. 2. Before a nonelective state officer
or employee may accept an offer to serve in
-2534-
. .
Ron. Charles R. Barden, P.B., page 3, (M- 532)
other nonelectiveoffices or positions
of honor, trust, or profit, the officer
or employee must obtain from the govern-
ing body, or If there is no governing body,
the executive head of the agency, division,
department,or institutionwith which he
is associatedor employed, a finding that
the requirementsof Section 1 of this Act
have been fulfilled. The governing body
or executive head shall make an official
record of the finding and of the compen-
sation to be received by the nonelective
officer or employee from such additional
nonelective office or position of honor,
trust, or profit including specifically
salary, bonus, per diem or other type of
compensation.
"Sec. 3. The governing body or execu-
tive head shall promulgate rules and reg-
ulations necessary to carry out the pur-
poses of this Act."
If Dr. Ulich is to exercise both positions inquired about,
It will be necessary to secure the necessary record of findings
or resolutions evidencing compliancewith the requirementsset
out in Section 2 of the above Article 625%ga, supra. Attorney
General Opinion R-193 (1968).
The facts submitted In your letter of request for an opin-
ion do not reflect any common law incompatlbllltyor conflict
of interest which would otherwise prevent a person from serving
as a Professor of Engineeringat Texas Tech University while
simultaneouslyholding the office of member of the Texas Air
Control Board. If there should exist or later develop a con-
flict in the two duties, or if the governing bodies of the two
agencies do not resolve the matter favorably to Dr. Ulich as
required by the above statute, he would be prohibited from
holding the two duties at the same time. Article XVI, Section
33, Constitutionof Texas; 26 A,L.R. 142; 132 A.L,R. 254; 147
A.L.R. 1419; 148 A.L.R. 1399; 150 A.L.R. 1444; 89 A.L.R, 113;
15 Am. St. Rep. 708; L.R,A. 1917A, pages 211-250.
In answer to your second question, it Is our opinion that
Dr. Ulich may properly be paid his per diem and actual travel
expenses. Such nonelective state offlcers or employees are not
-2535-
, -
Hon. Charles R. Barden, P.E.,,*page
4, (M- 532)
now precluded from drawing compensationfrom both nonelective
positions under Article 625%ga and Article XVI, Section 33,
Constitutionof Texas, as amended November 11, 1967.
SUMMARY
-------
r
A professor at Texas Tech Universitymay,
in compliancewith Article 6252+a, V.C.S.~,
serve as a member of the Texas Air Control
Board and simultaneouslyperform his duties
as such professor, and he may be paid a $25
per diem plus actual travel expenses by the '
Texas Air Control Board.
Verflruly yours,
ffeneralof Texas
Prepared by Roger B. Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
John Reeves
Sarah E. Phillips
Neil Williams
Jim Swearingen
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WRITE
First Assistant
-2536-