Untitled Texas Attorney General Opinion ( 1940 )

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OFFICE’OF %‘HE ATTORNEY: ~GiNERAL OF TEXAS,
AUSTIN
WC-
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"Keep in nind this is a gart-time job. I
vrotid appreciate an izzmdiste reply on this in
as nuch a3 I nunt s1~b2At ny list of employees
for 1940-41 to t?e S"uate E3ard of Cmtrol fin a
Pew a.3ya . "
Sections ?3 of Articie xv1 of the St3i.e Constitu-
tijn provides2
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Ronorable E. R. &right, Page 2
*The accounting officers of ~this State
shall heither draw nor pay a xarrant upon
the Treasury in favor of any person, for sal-
ary or co.opensation as agent, officer or ap-
pointee, who .holds at the sue ti.m any other
office or posItion of honor, trust or profit,
under. this State or the. United Stat&, exoept
as prescribad in this’.Constitution.n .‘.
There are certain eroeptions provided, lihioh,
however, are not material to the question under oonsiaer-
i3tion. .~
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In oonetruing ~&constitutional pro&ions the
interprettition to be,-placed upon the language used---- la’in-
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tluenced by observing.the objeot sought to ba aoconplished
aIId the evils sou&t to be alleviated or orevented.- When
this general purpose is ascertained, the ianguage used is
to he liberally Construed to the end that the objeot sought
may. be effeotuated. It thus behooves us to discover the
general purpose or polioy/tiought to be er;bodiad in Article -’
16. Seation 33. .. . . . . . ..I...:,
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JEt is. clear that this seotion does hot seek to
prohibit the serving of the State by one ‘individual in more
than one oapaoity. The ;;rovision addresses itself only to
the matter of oompehsatiqn. Thus, a Pan, Eay hold two oi’-
rices, or an offioe mid a Rositioc of honor ena~trust under
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the State, if no compensation attaohes to either. place. But
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if he holds au office, or is an a;rnt or appointee; and to
auoh.place cozpensation~attaches, he say not ba ~@,cI for
services readered in that capacity during the period of time
that he holds another position of honor or trust under the
State or the United States. yron this geueralstatenient 83
to what the section does and does not prohibit, v;e gather
the general policy~e~bodied therein. This policy soezs ob-
viously to be that no person should receive compensation
froki the State for services to be rendered it, when during
the tize such coxipensation is to beg earned such person, by
accepting and holding another position under the State or
--the United States, has obligated hjnaelf to render services
in connect&m -4.th the latter position, so that he my not
render full value in the first. capacity for the coaFensat.ion
.which the State has agreed to psy. So con3trued, we find
that the Section is but one of the clany in the Constitution
-eekiug to placa every conceivable snfe3uard. About the er-
mditure of State mouios. So construed, this Section seeks
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to avoid even the Sosslbllity that tho StAte &7 not ro-
coive a tull quid. pro '~20 fox srpenditures by my of COD
-gonsutioa for.soAnricas to ts roodorod in one capaoity, by
reason of t.ha pereoa sorvin~ in thet oa,=aoity- plnoiu~ his-
self in 5uch a :psJ.tion that he my ba tezgted to ~ue@.cct
tho duties of the 000 plaCs for the res~rslbilit~.ies' of tho
oth0r.
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AllAlpSl * ArtiClO~li, Saotiaxl 33, pl&iaoa thata
C.n (a) officer, (b) agent, or (0) apgolntoo fox
salary or c.oqwnsation 1s not oatitleb to rscoive pzqcent
from tbs accountiq offiacrs of the State of suoh oongenaa-
tion if, during the saw ti3e that he holds the place fo
which such sslarg or ccmpeosation atfaohes, he a130 fql.ds
soy othsr office or positions of (a) hocor, (b) trust, or
(0) jn?ofit~*
An "offiosrr is
one to whoza t.hore has boon deli;
EAted r30i;l
the sovereign fuuotfous oh govorment, to be
ereroisoa by hi% for the ban::fit of the publio. It is
cseated~ by 1~ nnd ezbodiiss the idea of continuing dutler,
rsthsr than transitory,or tax~ornr;r authority. 34 Tex. Yur.
pp, 3&j-326.
Thou& every orficcr is an aseat of the Stats,
every agofit OX the St&e is not aecessn~rLly an oflicor. An
offloo eiibraooa~ the idea of tenure--an aseuoy !zay sxiet. in
respeot to a single isolatsd.traa3action. so, too, an agent
io more than a mre en93.07e0 or nervaat. .Ee 5crves the .
%a:0 in P r8~re3eat~ntiVe c2p?Aaity$ a mere eq&y88 Or s%m-
ant is got olothed with any re~msoatative character. Turner
VT Cross, 1.8 S. 17. fi7.2~579, 03 Tex. 23.e.
xs think it is clear that the phys'ician to v?hlch
you refer is not to serve the P*;lt.e as an offiosr ox au
ageat. T&o score difficult prob1c.z Is wkthoror uot he is
an %i;&~itee~ rtithiu the mm133 of Aii.ti'cle '16, Seotlon 33,
of tho coostlt&ioo. Ti?ie brings US to 0. doter*&tiation of
tho intorpr~fation to be glaoed upon the terz-*appointoo",
86 usod in this eoction of ths Cohstltutien. As the word
is frerjzshtljr used, an ~*aDrxdntian is am who has b0an n?md
to or e.zluct?d for publio &ice,, not by elactisn of the 5;eo-
fle, but. bg desl;latlon at, tlze hands or' a ~'irzo:: 01' ;eT5o~s
n xh.2:; such authority is ve3ted by the l.az. Cn the other
hQi?) tke brortdar mnnicg of t.he tom ie sing17 **a ps-rso!?
dcsigy&d"*, ';,'eb3tera ::c?w ~nt~rnstio~al 3ict.Lmory, and zab
ticn. yh3 nam is dorlved frsn the voxb %;point'*, aud the
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-.Ronorable R.. R. Wright, Page 4.
verb has bsen held to be synonymous, in certain Context with.
%nployn and %irev. Norris v. ?arks, (ore.) 28P. (2d) 213,
2’ 216; State ex rel Coffing vs. Abolt, (Incl.) 29 N.X. 131,.133;
state ex rcl Pickett vs. Irueman, (EZ:.) 64 S. yf. (2d) 105,
107. _. ~.
If 'we atkribute to the term wappointeeR, the first
meaning above stated, we render it but a senseless repetition
of the term *officer* ,.for the term "officer'r embraces not
only those official representatives who are elected;but also
those who are appointed. We therefore construe it ashaving
been used as a synon;sxY-,:for the~term "employee*.
We are of the opinion that when the.latter portion
:lof-,drtielo 16,'Section 33, speaks of any other office .or posl-
tion of honor, trust, or profit, the,vrords npositionIof'honor,
trust, or profit* are used as descriptive of the general
,qharacter of the plasea.previously.re~ferred to as those of
"officer, 4gent, or app0intee.v
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Considering the.broad general purpose intended to T
Abe served.~by this section of the'Constitutlon, we are of the
opinion that the construction of thu term nsppointee" as mean-
ing and embracing 'lemployee*.is required.. The reasons~pro5pting
.the adoption of the policy are just a3 compelling; a~nd the
-evil to be avertedths same in the'case of the employee of ~the
estate who contracts to renders service for salary or compensa-
tion, as in the base of the officer or agent.
You are therefore advised that if a physician employed
part.time by one institution of the state accepts and holds a
sinilar place in another institution at the same the, he can
Aot receive a salary or compensation for either position dur-
ing the period of time that both are held.
Yours very truly