Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 4/24/1990
Status: Precedential
Modified Date: 7/6/2016
Honorable Carlos Valdez Nueces County Attorney Nueces County Courthouse 901 Leopard, Room 206 Corpus Christi, Texas 78401
Re: Whether consultant to private corporation that contracts with the state receives compensation "directly or indirectly" from state funds within article
Dear Mr. Valdez:
You request advice about the application of article
You also state that the mayor was not an employee of the corporation. She never received a salary or any other benefit paid to employees, but was strictly a consultant who contracted on an hourly basis as needed. Earlier this year, she terminated her contract with the corporation.
Article
State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies.
Tex. Const. art.
You wish to know whether this language applies to an independent contractor who contracts with a private entity that receives part of its revenues under contract with the State of Texas. An individual who receives compensation "directly or indirectly from funds of the State of Texas . . . shall receive no salary" for serving as a member of the governing body of a city.
The present language of article XVI, section 40, was adopted in 1972. The amendment was proposed by Senate Joint Resolution 29 of the 62d Legislative Session. S.J.R. 29, Acts 1971, 62d Leg., at 4133. The following portion of the title of the resolution describes the provision under consideration:
permitting State employees or certain other individuals, who are not State officers, to serve as members of the governing body of school districts, cities, or towns, or other local governmental districts without forfeiting their salary for their State employment.
This portion of the 1972 amendment was a response to Boyett v. Calvert,
The repealed version of article XVI, section 33, applied to public officers and employees at the state and local level. Viewed in this historical context, the provision that was designed to correct the Boyett v. Calvert result should apply within the same parameters as former section 33 — that is, to public officers and employees. Article XVI, section 40, deals primarily with state and local officers. In this context, it is reasonable to read the provision you inquire about as applying to state and local employees, in contrast to officers, and not reaching an independent contractor who may provide goods or services in exchange for payment, some of which is traceable to state funds. The scope of the provision is reflected in its language:
State employees or other individuals who receive [compensation from state funds] . . . who are not State officers. . . . (Emphasis added.)
Tex. Const. art.
A prior opinion of this office construing the repealed language of article XVI, section 33, supports our conclusion. Attorney General Opinion V-303 (1947) considered whether that provision barred an employee of the State Highway Department from working as an independent contractor for a school district. The relevant language of that constitutional provision read 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 as agent, officer of appointee, who holds at the same time any other office or position of honor, trust, or profit under this State. . . .
H.J.R. 27, Acts 1967, 60th Leg., at 2989.
The opinion stated that a person holding an "office or position of honor, trust or profit" in a school district, would be holding it "under this State." An independent contractor, however, was not an agent or employee of the school district. See also Attorney General Opinion
Finally, Attorney General Opinion
Accordingly, article XVI, section 40, does not prohibit the mayor of Corpus Christi from contracting as an independent contractor with a private corporation that receives state funds under contract with the state. In view of our answer to your first question, we need not answer your second question.
Very truly yours,
Jim Mattox Attorney General of Texas
Mary Keller First Assistant Attorney General
Judge Zollie Steakley Special Assistant Attorney General
Renea Hicks Special Assistant Attorney General
Rick Gilpin Chairman Opinion Committee
Prepared by Susan L. Garrison Assistant Attorney General