Untitled Texas Attorney General Opinion

EATTORNEYGENERAI.
PRICE DANIEL
ATTORNEYGENERA,.
Hon. Claude Isbell Opinion NO. v-834
Executive Secretary
Board of Regents Re: The e;l@blllty of a public
State Teachers Colleges school teacher or a member
Austin, Texas or a public school board te
collect per diem aa a member
of the Beard of Regents,
State Teachers Colleges 0
Dear Sir:
We refer’to your recent letter which, in aub-
stance, reada as follows:
One member lf the Board of Regents of Tex-
as State Teaohers Colleges la also a member et
the Board of Trustees of an Independent Soheol
Dlatrlct. As a member of the acheol district
board, he receives no compensation whatsoever.
Question: Mar he receive oer diem in attendance
tipon Board of-Regents meetings?
‘One other member ri the said Board of
Regent8 1s also a teacher In the publla
school8 of an Independent School District.
tEndraws pay for teaohlng eervloe. cues-
: May she reoelve per diem in attend-
anoe upon Board ot Regents meetinga?
Subeectlen 6 sf Article 2647, V.C.S., apper-
talnlng to the per diem a? the Beard ei Regents lr the
State Teachera Collegea, prevldes in part:
0
0 e .Zaoh and every member lf aaid
beard shall receive five dollars per day for
the time spent attending the meetings provld-
ed for in this law. 0 D, said oompenaatlan
to be paid to the several members of the
board out of the appnpriatlon for the aup-
port and malntenanoe ef the said State
Teachers’ Collegea as. the board nny direct.”
Former Attorney General 0 lnlon No. O-5157
held that membership on the Beard 0P Regents of the
Hon. Claude Isbell, page 2 (V-834)
State Teachers Colleges is an office. By virtue of the
compensation provided in Article 2647, subsection 6, it
is an office of emolument. A. G. Opinion V-462.
Membership on the board of trustees of an ln-
dependent school district is an office. 34 Tex. Jur.
332, Public Officers, Sec. 7. Since such a trustee
serves without compensation, it is not an 0rriOc lr
emolument e Article 2775, V.C .S. ; State v. Martin._51 S.
WA.2d815 (Tex.,Clv. App. 1932); A’.G. 0 1 1 . V:65-‘-
O-3308, O-1422, o-3730, 0-27Olk O-2528’ :4’?eex “iur ’
349, Public Officers, Section 17. But’a trustie of’an
independent school district holds an office of honor and
trust within the meaning of Section 33 of Article XVI, a?
the Texas Constitution. A. 0. Opinions Nos. O-1422, O-
2701.
A aohool~‘teacher, hewever, 1s not a public lf-
ricer and does net hold, as such, a civil office sr emol-
ument. A. 0. Opinions V-325; O-4902; O-4669, O-4628,
O-371 and oases olted therein. The annotation in 75 A.L.
R. 1355 concludes: “The courts are almost unanimous in
holding that the pseitlon of a teacher la that of employ-
ee resting on contraot an A. 0. Opinions: V-689-, O-7396,
O-4982 e
Thus, the constitutional prohlbltlonagalnat
the holding of more than one office of enmlument (Tex.
Conat. Art. XVI, Seo. 40) ls,lnapplloable to the two
questions submitted. We can conceive of no reason why
the duties of a member of the Board of Regents of State
Teachers Colleges should be in any manner incompatible
with the duties either of (1) a member of the board of
trustees of a~schoel district, or (2) 8 teacher in a
school district. A. C. Oplnlens: V-6$, O-1422, O-989.
Therefore, one person may hold office as a member of
the Board of Regents of State Teachers Colleges and, at
the same time, hold office as a trustee of an lndepen-
dent school district or serve as a teacher in a school
district.
But as to the matter lf salary or compensation
to be paid a person holding two such offices or positions
of honor, trust, or profit, we are oonfronted with Section
33 of Article XVI, Cenatltutlon of Texas, which provides
in part:
*The accounting Officers of this State
shall neither draw nor pay a warrant upon the
TreIsury in favor of any person, for salary
. .
Hon. Claude Isbell, page 3 (V-834)
or oompensatlen as agent, officer or appolnt-
ee who holds at the same time any other of-
floe or position #t honor, trust or profit,
under this State lr the United States, except
as prescribed in this Cenatitutlon.W
The Construotlon of Section 33 of Article XVI
was involved in former .Attorney General Opinion No. O-
2607, cited in Opinion O-4902.. We quote therefrom as
follows :
“It la clear that this section (Section
33) does not seek to prohibit the serving of
the State by one lodlvldual in more than one
capacity. The provlslon addresses itself en-
ly to the matter of compenaatlon. Thus, a
man may hold two offices, or an office and a
position of .honrr or trust under the State,
lr~no compensation attaohes to either place.
But it he holds an offloe, or la an agent lr
appointee, and to suoh plaoe oompensatlon
attaches, he my nat be paid for services
rendered in that capacity during the perled
of time that he holds anether position of
honor or trust under the State or the United
States. . .”
Oplnlons O-2607 and V-325 also advise to the
effect that although a sohool teacher does not hold an
office, he does hold a apssitlon of honor, trust, or
profit” within the meaning a? Seotlrn 33, Article XVI.
These lplnlons hold further that a person may legally
serve as a part-time lnstruotor~ ln a State supported
college and at’the same time aarve um a part-tlnw.teaoh-
er in a aohodl dlstrlot where the duties to each posltlsn
do not overlap and are in no way inconsistent. However
in doing so he forfeit8 all right to any salary or com-
pensation to whloh he might have been entitled as ln-
structor in the college.
Even more pertinent to the facts under oon-
sideration ls~fonner Attorney General Opinion No. O-
’1422 which held that a person may legally serve on
the Board of Directors of the Texas College of Arts and
Industries and at the same time serve as a member Of
the board of trustees of an independent school district;
but in doing so he forfeits all right to any compensa-
tion to which he may be entitled as a director of the
college by reason of Section 33 of Article XVI. See
attached Opinion No. O-5137 oonoernlng the Board of Re-
gents of State Teaobers Colleges involving other dual
posltlons.
- .
Hon. Claude Isbell, page 4 (V-834)
It is noted, however, that Section 33 of A&l-
cle XVI pertains only to the authority of the acoountlng
Officers of the State to draw or pay a warrant on the
Treasury, and has nothing whatever to do with the author-
ity of a school district to pay the aalarl a of lta
teat hers. A. G. Opinions V-759, V-689, V-3\ 5, o-5087,
O-4982; O-7491.
Accordingly, we answer both your submitted
questions in the negative.
One person may hold office as a member
of the Board of Regents of Texas State Teachers
Colleges and at the same time hold offlae as
a trustee of a school district, there being no
emolument attached to the latter office. A re-
gent may also serve as a teacher in a sohool
district since a teacher is an wemployeen and
not an “officer.” Tex. Co et. Art. XVI, Seo.40;
A. G. Opinion No. O-1422 f He may not, however,
be paid the per diem compensation for Board of
Regent members provided in Article 2647, subaeo-
tlon 6, V.C.S., during the time he holds such
other office or position of honor, trust, or
profit. Tex. Const. Art. XVI, Sec. 33; A. G.
Opinion No. o-5157 .J
Yours very truly,
ATTORNEY
GENERALOF TEXAS
CEO;bh:j&
,&=f-
Chester E. Olllson