R-655




                                                   July 18, 1947

'Hon. William L. Kerr; President
 Board ofRegents
 State Teachers'Colle
 First EatioliplBaqk
Midland, Texas               Opinion No. V-308
                                                        'Re: Eligibility of a State
                                                             Senator'tohold the
                                                             positi~onof wExecu-
                                                             tlve Secretary" of.the
                                                             Board.of Regents,
                                                             State-Teachers.:Col-
                                                             leges; such office
                                                             being created during
                                                             his term of:~off$ce.-
                                                                        :.~.
                                                                        .:
                                                                    : s;;.:
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                                                                    ;,
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                                                                         ':.
_   .i   ,~..a.:-   ‘;~~   .‘ro~,;~~tte~lof.~~~~         I(),   1947,   st&te&~,*ht      the



 recent;Legisi,~ture.,~pr~v~~ed~for,the
                                    appointsient,
                                                of an
 Executive Seci&&y:tio@etie the Board of':Regents.of
 the'St,ate.TeB,~hers
                    CoUgee of Texas. You-:state.-that
Se&&or-B;,:L,;",Profferb
                       ~~&'~a'mernber
                                   of that &egSslature,
.~wh%ch:cz%ated,
               this positi'on.,
                             '..You'wish
                                       tooknow whether
.SenPtor..ProffBq~~may
    . .              lawfully:be.appointedto the above
.




    lion. William L. Kerr - Page 2                       V-308
         .

                 Similarly, Article 16, SectAm   40, provide8
    in part:

                  "No person shall hold or exercise!at
             the same time, mor8 than one sivil office
             of emolument . . .*
              Rowever, the position of 'Executive Secre-
    .tary"to.the Board of Regents of the State ‘$zachers
    Coo;efeafgi0not a #y&&v.          It is an employ-
               *officer exerc see some governmentalfune-
    tion; he is Investedwith some portion of the sovor-
    eignty.+ A public office is a right' authority, and
    duty created and.conferredby law. &he tenure of which
    is not transient..occasional,or Inaidental, Among
    the usual triterfa given for determIningwhether an
    employment Isa public.office or not, ars the require-
    ments of an effieial oath and bond; that the powers
    are anted and conferredby law and not by contract.
    ,Thef?
         .officerw$5 generally answerablefor misfeasance
    in'office, and is responsibleforthe acts of his wem-

                                                                  ‘_
     tdes as are prescribedby the employingagent. The
     ?employeew is often subject to discharge at the wilh
    -of the wofficerv to whom he isresponsible. These
     matters are fully discussed in Lo d v. _comO,137 S.W.
          880, writ.refusedji;&noxv1-Ye-
                                      o nson, 141 S.W. (2d)
       8,.writ refused;,Meecbcuq,~
                                 Publmcers,       Oh? 1;
     l+ZAm. JUT.,,Public Officers,Sections 2-16; 34 Tax.
     Jur*, Public Offleers Sections 2-4; and in Annota-
     tions 53 A.L,Rt 595, 43 A.L,R. 333, 140 A.L.R. 1076.
              T$&&e5~. Article 3, 8ecti~enIt, and Arti-
    cle 161.Section40 are not ap llcable;.andSenator              ‘Z.’
    Preffer'.maybeappojabed to tKmenow poritien~.
                                                                 ,

                 Ho~ver~ titic&e 16, Section 33 provides:        :,




               eThr'aeca Bing~offieerslf &h&e
          State shall *.tlol*\'.drau
                        E"         mer pa9 a war-
          rant upon the treasury in favor of any      .__..           *:
          person, for salary or.aompensation~a6
          agent, officer,of.appo+ntee,who &Ids
       . 'at the same tame any other off&M or
                                   or profit Md+r
          position of.hoRcir:.~truet
         'thisState     .~e.
                        l  54
Hon. William L. Kerr - Page 3                   V-308



          A State Senator is an officer of the State.
That office is one of honor, trust, and profit. The
Executive Secretary is an agent or appointee of the
State; and his position is one of honor, trust, and
profit. Hence under Sectien 33, the Accounting Of-
ficer of this &ate could neither draw nor pay a war-
rant on the treasury in favor of Senator Proffer for
either place. While holding both places, he could be
paid neither as Senator nor as Executive Secretary.
In order to be paid as Executive Secretary,he would
have to resign the office of State Senator.
          A similar result was reached in Attorney
General's Opinion 0-6458, a copy of which is herewith
enclosed.'It was there held that a member of the 49th
Legislature could be appointed Executive Officer of
the State Board of VocationalEducation, but that he
could not be paid from the Treasury thereafter until
he resigned from the Legislature.
                       SUMMARY
          Although a member ef the Legislature
    is ineligible to accept an woffice* created
    at the session  of whioh he was a member, he
    may become an wemployee" of the State (as
    distinguishedfrom an Rofficer") in a place
    created by such ~session. Hewever, if he ac-
    cepts such emplo.
                    Jyw     he may receive no pay
    from the State ile holding both places.
    Art. 16, Sec. 33. He may receive pay for
    such employment if he resigns his office in
    the Legislature.
                                               .'
                               Yours very truly,
                        mnimirgp



                                Joe R. Greenhill
                                Executive Assistant
JRG:erc