Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Pear air. ~.!i?happardl
Iion. G%o,oIL Sheppard - Paga E
or pay any parson who Is ap offloer or oom-
SL~;L~; member of any political party organi-
. The uonmlaslon my delegate to any
au& person 80 aapolnted euoh parer and
authority a8 it damns reasonable and proper
i0r*ths efre0tive adminlsPetion of this
Aot, and map In it6 disowtion, bond any
person htmdng monsyo or eignlng ~heoks
heroandar,"
In purmanoe of thi8 authority, the CO~Wstion
has #et-up (L body of en@lopaer krwm as ,the Hurit Jystem
Oounoll, designbd to meat the ap roval of tha F&oral
SaOWity AgcUlOy for loinimun St J aFd4 of a merit mystem.
This ttetup ia a8 fol.lOwar
"SMTIC2pI - XSRIT - aolmcIL
'?)aragFaph I. A Martt; System Counoil, to be govsra~!
by the rules harsln prov%dsd, shall be appointed
by the majority ocsnaont of the Co111mjs#io~s,
The COMOil 6hrll bi3 OCWQXWJ~~ Or thrO0 (8) SW-
bar6 who shall be publla-apirfted oitlseens M
knfmledge of publio ad-
8rraOtion 0r ~0wieiw
intereet' ti lta
organi%atlon during the year next prsosdlag his
mppolntment, nor ahall he hold ewh ofticP# &ix'-
ins his tag. Bo member or the COwlOil ShlLll be
othf~dmb 8i~~loysd 85 8~ ofri0itd or
the GOXQ.MJ:O~ ~loyee
during hl8 term a8 a mam er of Oi
the Corm011 anb,~haLl not have bean an imployoo
or the C-lserlon within One gear next prao*aing
his appointmnt aa a rmnbr or the Oounoll~
Par., a. It shall be the lluty of the Counoll:
1, TO dvi5a On t&Option or general poliaier ror the
d.miniatration 0r merit exuain&ions,,a~d to act
as appsal board for applioants wh0 have been ra-
..,.
3
Hon. Ceo. B. Sheppard - Page 3
joated for oxadnation, as provided in titlole
XIII.
2. To hear appeals of employees &lsahargod or de-
moted.
3. To advise in the formulationof prooedures ln per-
sonnel adminlstratlonto insure conformitywith
rules and pollales.
4. To 3dvlse~nithfad racommend.rorseleotlon and 3).
polntment,by the C~nmlssl~n, a Merit System Super-
vioor; to advise with the Merit System Supervisor
ln formulationof prooedures ror the conduot ol'
merit examinations;and to lnspeot and review tbs
aotfvitiesor the Supervisor to.lnsure oonformlty
with this Rule and the poliolee, ala8slfioatlOn
end objeotlve etandards of the ~ommlsslon~
5. To review the olassltlaotlonand eompansatlonplans
and to advise on their adoptions and subsequentre-
visions,
0. To promote publlo unberstandlngof the purpoaea,
poliales and prsotloes of the merit system. As a
meens thereto, the Sounoll shall make a report to
the Commissionatleast semi-annuallyon the opera-
tion of the marit system, inoluding the oondact of
examinationa,the establishmentof're&vters, aer-
tlfloatlon~fromregisters, promotions, salary ad-
vanoements;dismissale,demotions, transrers,
separationa,end the maintenance of elaeelfloatlon
and aompensationplans. A oopy of this rsport
shall be open to publla inspeatlon.
7. To recommend to the Commission amendments or &a~&58
in ths msrlt system, whlah, in their opinion, are
deemed neoessary and advisable and whloh, in their
opinion,will promote a more errlclent and oaonom-
loal operritionof tha merit plan.
Par. 3. Xembers or the counoll.shall serve for a term or
one (1) year, beginning with the date 011whleh these
rules are apgrovod, or until suaemsora have been ap-
pointed. A member appointed to fl.lZa vacanay oaour-
ring prior to the expiration of the term shall be ap-
pointed for the remainder of suoh t8rm.~
4
ITon. 040. B. Sheppard - page 4
Par. 4. The Council shall eleot a Chairman f’rom
its membership. It shell also deelgnete
the Merit System Supervisor or other em-
ployee as its Rsoordlng Seoretary, whose
duty It shall be to keep a reoord of the
prooaedlngs of meetings. Eleetings OS the
Counofl ahall be held aa often a8 neceseary
and preotleeble upon oall or the Chairman.
The Commission shall have the right to be
represented at all meetings, but suoh
repreeentation shall be without voting
power, The Counoll shall adopt prooedures
for the oonduot or Its activities.
Par. 6. Member6of the Counoil shell reoelve no
eelarg or wage, exaept that they laay be oom-
pensated on a per diem basis ot not to ex-
oeed Ten Dollars ($10.00) per day ror eeoh
day that they are in attendanoe at meetings
of the Counoil and enga ed in the perrorm-
anue or their dutlee. hl ey may also be re-
imbursed for ex$ense,s lnourred while engaged
In the performanoe ot their duties ineluding
traveling expenses, wlthln the limits or the
biennial appropriation aat .*
Pour lnqulry raiess at once the fundamental ques-
tion or whether or not the oooupanoy of the position of
faoulty member to the .A. a I. College, and or membership
in the writ System Counoil ie in anywise in violation 0r
Seotione 5;1 or 40 or &rtials xvi of the constitution, or
otherwise illegal beoawe or inoompatibfl.lty or the two
positions.
Seation 40 or iZrtiole XVI or tha coastltution
forbids any person to hold or exerolse, at the same time,
more than one =olvil orfloe oi emolumentn, with certain
exoeptions not pertinent to this inquiry.
The position or a raoulty member or the A. k M.
College Is not a civil offloe. Suoh a member Is an em-
ployee rather than a air11 offloer, although, of eourae
his poeition Is one or emolument, The poslti.on of taouity
member Is not oreated ,by law but by oontraot between the
employing Board and the IndirldualJ and, furthezmors, the
Eon. Oeo. EL Sheppard - page 5
duties of such faoulty member are not created by law,
but, on the contrary, by oontraoti again, &oh facdty
memb6rdoes not exercise any of the runotions of saver-
eignty whatsoever, and this ia an Indispensable funo-
tion to a civil orrioer.
W8 have reoognlsod fheoe a6 ts%tr in our ap$nlon
Elo. O-490, in which we cited with approval the ceae of
State 0r r8ontana vs. Hawkins, aeoretary 0r State; 88'1 pao.
411, 33 A. I,. SZ. 685, and annotation thereto upon the sub-
jeot of "DtitinOtiOn between ofrioe and ~loymentr~ 800,
&1so, our Opinion No. O-ES&RI,and .34 Tex. Jlur. p. St3.
Seotlon 33 of &tlole XpI or the Constitution
1.s mora restrlctivs. l% provldee a8 rollorrsr
*The a&UtUIg olfloers ot thie State
shall neither draw nor pay a ~raat upon
the Txeesury In rater or any pertboa, for
salary or aomporuation aa agent, orrioer or
appoints0 who hold6 at the oam tti any
other offloe or oeftlon or honor, trust or
prorlt, under t h! K State or the United a,tatea*,
vririt g$ln enmaer~t8d eroeption.6 not porti-
.
Thls seotlan extends the disqualifioation of a penon be-
yond the holding or exeroielng or ~a wolvi.1 offioe or e-
molumont,* 80 se to inoluds the holding of any other
wofrlce or poeition of honor, trust or prolit*, under thl8
state op: the united Stataa,.axcept a8 p-or&bed ia the
Constitution.
The question recrurn‘than, whether or not the
poeltion of a faoulty member in the A. 6 11. College i#
an *offioe or position or honor, truet or proriW, under
this State. Dndoubtedly, a.proreanoPship i.n the A. t Y.
college is a *position or honor, trust and proriP. 8uoh
ponition, we think, further, is held Wander this State*.
wue lt Is that the raoulty aaabor is not employed dlreat-
ly by the State, but, on the other hand, is cynployed by
the Board having control ar the institutioni but euah
Board is itself a botly of publlo ef+flOerS, Oonstituting
a Stat8 governmental agenoy ror the very pl.lrpo89 of oon-
duoting the arrairs 0r tb, College, and in every just
sense, thereford, the faoulty member6 employed by tke
Board, and wh+, or ooursc), am paid Wectly bg the
‘. -‘-” -
f
Hon. OM. B. Sheppard - Pa@ b
state, are hold& positions oi honor, trust and profit
under the State, not lmmdlatrly but mediately. me
State oan orily act through ~enololr.
So that ln the opinion of thiu department,
Soetlon 33, Artlois XVI, o? the Constitution dor pxobl-
bit a member or the faoulty or A. Q M. oouege rrtm m-
oelving: ralary or 00mpenaation whatsoever out of the
State Treasury for mrrlou rendered a8 a member of the
Merit System Counail or your board.
we think this uonclu8ufoa f6 supported ir not
oompelled, by the o~inlon 0r first wal8tant Atkrnoy
cwneral Cureton (Le al opiaio*, Attorney Oenerdl, 19l%
1914, pb 873) whemL he hold am follmmt
"we, thorerore, byl to adtie you that
Eonorable W$U H. May68 while aotlag~aa Limu-
tenant Governor of thir Wats, oould not la&l-
ly hold the p~rribion 6r~ PJslomont of a profu-
aor or journeliam in the unirenity or pma0.*
Moreover, oar 065olorion rind0 isupport and au-
thiilty in the opinion of ID. Taylor, Aaslstant Attorney
cmmral, a aonierenob opinion Qtlr* General IPonoy’a
admlnlatlcatlon (opieions, &ok 30, p. 394) wheroln it wa@
held thatr
%hould one or the alorb in a depart-
msnt be appointed a mcmborof a board of maaa-
gem 0r an elmmo~ynary la8tltutlon, then tti
ofriosrr of tM6 rtate would be
$?i%te 3 by the ab~re $eotlon Sr~m drawin,$
or pay* any warrant upon the IPrramry ror
the mlary or rush a e1rrk.n
It will be obsamed that in the two oa8u &et
elted the queetlon propounded and uwwered by the Attorney
Oensml~s Department was with rempoet to the right8 Of an
employee or a departnmt to reoelte compensation while at
t& :a$ tine holding and enJoyif@ a publlo orfloe under
The preotee qu9stlon whether or sot the pub110
oiflwr'holdlnS at the mamatima a pcmltlon of honor and
trust under the state oould reeelv~ ompenaatlon from the
*. --.-~ /
State Trea5ury wa5 not presented or deolded. That Is,
however, the precise questlon pmsenteU In this mm.
That such officer is denied the right of salary or oom-
pensatlon we think la clear beyond doubt under the express
terms of Section 33. The two oases above olted axe also
authority ior the proposition that the employee ln suoh a
ease ls llkawlse denied oolapensation from the state. This
oonoluslon would appear to be corollary to the main oon-
elusion that the two positions are incompatible under the
Constitution and that the person oooupying euoh dual posl-
tfons would thererore not be entitled to oompensatlon from
the State with respect to either position, whether of of-
floor, agent, appointee, or eglgloyee solely.
However hat my be we are of the o InIon that
in say event Seotlon 33 of A&le XVI does pro 1 lblt the
payment of compensation out of the @ate Treasury to an
offloor, such aa the one under consideration here, who at
%he same time likewise holds or attempts to hold a position
oi honor or trust uader the state,
yours very truly
ATTORaEll
CJEWBAL