Untitled Texas Attorney General Opinion ( 1957 )

THE ATJFORNTEY GENERAL
OF TEXAS
Hon. Olin Culberson
Chairman
Railroad Commission of Texas
Austin, Texas
Opinion No. W-201
Re: Can a Railroad Commission employee also
serve as a Joint Board member for the
State of Texas under appointment by the
Interstate Commerce Commission, and
whether such membership constitutes an
office or position of honor or trust?
Dear Mr.. Culberson:.
You have requested the opinion of this office in
answer to the following question:
“Can a Railroad Commission employee also
serve as a Joint Board member for the State of
Texas under appointment by the Interstate Com-
merce Commission, and whether such membership
constitutes an office or position of honor or
trust?”
Part II of the Interstate Commerce Act, Section 205
(Title 49 U.S.C. A., Ch. 8, Sec. 305) provides that the Inter-
state Commerce Commission shall, under certain circumstances,
when the operations of motor carriers proposed to be conducted
involve not more th.:n, three states, refer to a joint board for
appropriate proceedin&e in which a hearing is r.equired or, in
the opinion of the Commission, is desirable, certain applica-
tions for certificates or licenses or suspension of certifi-
cates or licenses or other matters committed to the jurisdiction
of the Interstate Commerce Commission under the Interstate Com-
merce Act.
Section 305(b) provides that when the Interstate Com-
merce Commission (hereinafter referred.to as the Commission) is
required to refer any matter to a joint board, the Commission
shall create a joint board to consider the matter when referred,
and to recommend an appropriate order thereon. The joint boards
consist of a member from each state in which the motor carrier
operations involved are, or are proposed to be conducted. The
Hon. Olin Culberson, page 2 (blw-201)
members from such states shall be nominated by the ,RQ& of
such state from its own membership, or otherwise.
Section 303(2) defines the term, @@boardl’as the
commission, board, or officials (by whatever name designated
in the laws of a State) which, under the laws of any State
in which any part of the services in interstate commerce regu-
lated by the Interstate Commerce Bet is performed,, has juriz-
diction to grant and approve certificates of public convenience
or necessity or permits to motor carriers, or otherwise,regu-
late the business of transportation by motor vehicle in intra-
. state commerce over the highways of such State. The Railroad
Commission of Texas is therefore the %oardt8 for the State of
Texas.
After the.borrd has submitted the nomination to the
Commission, the Commlsrion is authorized tti appoint as a member
upon the joint board any nominee approved by it. Members of
joint boards, when fuxtioning under the oqder of appointment
of the Commission, do not receive any salary, but do receive
such allowances for travel and subsistence expenses as the Com-
mission shall provide. Joint board members may use Government
transportation requests when traveling in connection with their
duties as joint board members. The joint board continues in
existence for the consideration of matters referred to it by
the Commission until such time as its existence may be terroi-
nated by the Commission, and a substitution of membership upon
the joint board from any State may be made at any time by nomi-
nation and appointment in the same manner as the original tiomi-
nation and appointment.
Section 305(d) authorizes the members of the Commis-
sion and the Commission’s examiners and joint boards to admin-
is’:er o::.ths, subpoena witnesses to testify and produce books,
papers, etc., and to tske te3Xmony by deposition as to any
matter under investigation.
Section jOj(e) provides that the joint boards shall
give reasonable notice to parties interested in the proceed-
ings to be conducted, :rith an opportunity for intervention
therein, and to participate in the hearing.
Section 305(j) provides that no member of the joint
board shall hold any official relation to or own any securi-
ties of, or be in any manner pecuniarily interested in any
motor carrier or any carriers by railroad, water, or other form
of transportation.
Section 305(a) also provides .thatr “In acting upon
such matters so referred, joint boards are vested with the
:.i; .:
Hon. Olin Culberson, page 3 (WI-2011
same rights, duties, powers and jurisdiction as are . . .
vested in members . . . of Ehe Commission to whom a matter is
referred for hearing and the recommendation of an appropriate
order thereon. . . .I1 Orders recommended by joint boards shall
be filed with the Commission and shall become orders of the Com-
mission and become effective'in the same manner, and shall be
subject to the same procedure as provided in the case of orders
recommended by members or examiners under Section 17 of the In-
terstate Commerce Act.
Acting pursuant to Section 305, the Interstate Com-
merce Commission on January 29, 1957, upon the recommendation
for nomination by the Railroad Commission of Texas, appointed
certain examiners of the Motor Transportation Division of the
Railroad Commission of Texas as substitute members to sit upon
certain joint boards theretofore creited by the Commission.
The order of appointment reads in part as follows:
"It is further ordered That the nomination
of the above-named substituie members be, and the
same is hereby, approved and the said persons so
nominated be, and each of them is hereby consti-
tuted and appointed a substitute member of each of
the above-named joint boards for the above-named
State, and each of them, but not more than one of
them at the same hearing, is hereby authorized in
the event the above-named member is unable to sit
as d member of any said joint boards in any refer-
red matter, to sit upon such joint board as a mem-
ber thereof with all of the rights, duties, and
powers authorized by the Interstate Commerce Act,
to be conferred upon the members of joint boards,
in any matter referred thereto; . . .I'
The examiners of the Motor Transportation Division of
the Railroad Commission of Texas hold positions of honor, trust
and profit under the State of Texas. Such employees receive
such salaries as may be appropriated by the Legislature under
the Appropriation Acts.
Article XVI, Section 33 of the Constitution of Texas,
provides in part:
"The Bccounting Officers of this State shall
neither ~drawnor pay a warrant upon the Treasury
in favor of eny person, for salary or compensation
as agent, officer 'or appointee, who holds at the
same time any other 'office or position of honor,
trust or profit, under this State or the United
States, ~except as provided in this Constitution.'Q
Hon. Olin Culberson, page 4 (WW-201)
gone of the excepted positions named in Section 33 are appli-
cable to the question propounded.
A joint board member receives no emoluments or prof-
its for his services upon such board. Therefore, the answe~r
to your question must be based necessarily upon whether a joint
board member holds or occupies an office or position of honor
and trust.
Among the criteria in determining the distinction be-
tween a l~position'l and an "officew are (1) whether the holder
has been delegated.power to exercise a portion of the sovereign
functions of the Government; (2) thatthe powers entrusted are
conferred by law and not by contract; (3) the fixing of the
duration and term of office; and (4) the nature of the duties
to be performed and the powers which may be exercised. Rendrlckg
y S a e 49 S.W. 705 (Civ.App. 1899); Kimbrough v. Rarnett, 93
T;x.~~&; 55 S.W. 120, I.22 (1gGC).
A joint board member appointed by the Interstate Com-
merce Commission, an agency of the Federal Government, upon
recommendation of the Railroad Commission of Texas prforms a
semi-judicial duty very similar to that of a Master in Chancery
appointed by a Court. He sits as a member of the semi-judicial
tribunal which, after hearing and weighing the evidence and
applying the law governing the facts developed, makes recommen-
dations to the Commission that an appropriate order be entered.
Ris membership uPon the joint board continues in lull force un-
til vacated by an appropriate order by the Commission.
When the method of the appointment as a member of the
joint board, the tenure or dsation of the membership thereon,
ad the powers and duties delegated to .znd iulposed upon a joint
bo&rd m=mber are t;.-:eil into c.;nsiderL..:ion, it is the opinion of
this office that ;i member.of such board is holdin;: an office of
honor and trust under the United States Government. Since such
joint board member is :lso holding a position of emolument or
profit under the State of Texas, the Comptroller of Public Ac-
counts is prohibited, under the provisions of Article XVI, Sec-
tion 33, of the ConstLiution of Texas, from dra-wing or paying
any warrant upon the State Treasury for salary or compensation
of the employee of the Railroad Commission while serving as a
member of the joint board.
While SerVing upon a joint board the joint board mem-
ber is performing a function as a representative of the State
of Texas on that tribunal, the duties being somewhat similar
to those performed by the substitute joint member while acting
as an examiner for the Motor Transportation Division of the
Hon. Olin Culberson, page 5 (WW-201)
Rciilroad Commission of Texas in conducting hearings to consider
matters under the jurisdiction of the Railroad Commission of
Texas, the only difference being that the jurisdiction of the
joint board is confined to j&g&state commerce while the juris-
diction of the Railroad Commission of Texas is confined to &-
-state commerce. Hence, the holding of an office of honor
and trust under the Federal Government is not incompatible with
;;l;;;Esa position of honor, trust and emolument under the State
.
A substitute member of a joint board appointed
by the Interstate Commerce Commission under the pro-
visions of Title 49, U.S.C.A., Section 305 (Inter-
state Commerce Act, Part II), holds an office of
honor and trust under the United States Government
and while serving as a member of a joint board he
cannot receive any salary or compensation for his
services as an examiner for the Railroad Commission
of Texas under the provisions of Article XVI, Sec-
tion 33 of the Constitution of Texas. The office of
a joint board member and the position of an employee
of the Railroad Commission of Texas are not incom-
patible.
Very truly yours,
WILL WILSON
Attorney GeDeral of Texas
BY
C. N. Richards
CKR:wb Hssistant
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
Jas. N. Ludlum
W. V. Geppert
J. C. Davis Jr.
Marietta Mc®or Payne
REVIl&!EDFOR THE ATTORNEY
GENERAL
BY: 130. P. Blackburn