I
                                                                                 R-692
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                             T~~EATI-ORNEY                 GENERAL,
                                        OF??EXAS
                                        AULITIN II. -TEXAS
         PRICE   DANIEL
         *Trcx?NEY GENeRAL
                                              August 15, 1947

                  Hon. 0. ii. Lloyd, Executive Secretary,
                  Employees detirement System of Texas
                  Post ~Office Box 791
                  Auatin,  Texas                Opinion No. V-345
                                                     de:    Whether the Employees
                                                            Hetirement System may
                                                            employ an actuary as
                                                            an independent con-
                                                            tractor,  who at the
                                                            same time, is an ac-
                                                            tuary for another
                                                            State Agency.
                  Ubar Sir:

                             Your letter   to this Denartu:ent asked for an
                 opinion as to wile,ther i#Z. John ;j; ,iudd, J;. :~a:{ be em-
                 ployed as an independent      contractor   to furnish actua-
                 rial services to the Emplo ees Retirement 3ystsm of
                 Texas.    YOU disclose  that Kr. liudd his at the present
                 time serving,as    a consulting    actuary for the Teacher
                 itetirement System of Texas.       iie is carried  on the pay
                 roll of that Department as a part-time errployee.
                               ilitll reference to whether Mr. Hudd, if em-
                  ployed, would ‘be an nemployeev or an “independent con-
                  tractor,v    the following    information is obtained from
                 correspondence furnished to us by you:            Kr. Hudd main-
                 tains an independent business as a consulting actuary
                 at 107 West 14th .Street in Austin.           He retains a staff
                 of emplo?:ees and furnishes 0~11of his own office              ma-
                 chines anil equipment. He is enpaged in actuarial ‘work
                 as an independent .contractor        for various insurance com-
                 panies and pension systems.          His work, with the Teacher
                 detirement System .is that of furnishing          actuarial     serv-
                 ices.     ile was offerea a oosition      as Assistant Directorand
                 Actuary for the.Teacher hetirement jystem at $4800.00
                 per year.      In the alternative,      he was offered $2500.00
                 per year to be their consulting          actuary.    He ;‘lzc;q”,;d
                 their latter offer and rejected          the former.
                 not occupy any desk space in any Teacher Retirement
                 Systes office.        He does not have any stated office
Hon. 0. H. Lloyd - Page 2                                      v-345


hours.  me is free from tile control of the Teacher Re-
tirement System with respect to the details  of the man-
ner of his work.
            There is considerable  doubt as to whether or
not Mr. Rudd is an vemployeen of the Teacher Retirement
System, as distinguished    from an “independent contrac-
tor”.    But, assumin that he is an wemployeew of the
Teacher Retirement Eystem, the recited     facts clearly
indicate   that Mr. Rudd would be retained by the Rmploy-
ees Retirement System as an “independent contractoru
rather than as an “employee”.
           In Opinion No. V-303, promulgated by this of-
fice on July 15, 1947, a co y of which Is herewith en-
closed,  it was held that a ! tate employee Is not pro-
hibited by law from entering into and executing a con-
tract,  as an independent con$ractor,    with another State
agency where there was no incompatibility     in such work,
and where there was no failure    to discharge his State
duties.
             There is no incompatlblllty     in furnishing ac-
 tuarial   services to both the Teacher Retirement System
 and the Employees Retirement System.        There are no con-
 flicts  of interest;   neither position    is subordinate to
~the other; neither is sntaFonistic      to the other; nei-
 ther has any Tower to appoint or remove any employee of
 the other; neither audits the books of the other; and
 neither exercises    any supervision   over the- other.
              Article   XVI, Section    33, of the Texas Consti-
tution     provides:
               *The accounting officers     of this State
         shall neither draw nor pay a warrant upon
         the treasury in favor of any person, for
         salary or c&t!:ensation as a;*ent, officer       or
         appointce,   ~110 110lds at the sari::: time any
         other ol’fice or vosit;on     of horlor:ntrrs&
         or profit under this      tate . . .
         phasis added)
             However, an independent contractor    occupies
 neither an office   nor position under the State.      Ho is
 not an agent of the State.      He is free to control the
 details  of the work, and may work at such ilours a:; he
 may see fit;   he is free to employ or diucharye assist-
 ants without consulting anyone connected with the State:
    ,

,

        Hon. G. H. Lloyd - Page 3                                      v-345



        and he would be responsible    for his own torts and the
        torts of his employees.     The Employees Retirement Sys-
        tem is merely interested    in the results of his work,
        to-wit,  the actuarial  tables and information to be fur-
        nished .by him.
                   We, therefore,       hold that  Article      XVI, Section
        33, of the Constitution       is not aprlicahle        in this situ-
        ation, and that you may engage Fir. Kudd as a consulting
        actuary  as an independent contractor.           By accepting
        such contractj   he,.wculd not jeopardize        k-is 'part,;tinte
        position with tire ,l'eacher itetireuient     &StStii,    and the
        accounting officers     of.this     State would be justified        in
        issuing warrants in his behalf for services              rendered.to
        both departments.
                                     Srn&ARY
                   The Employees. lietirement bystem of
              Tews may engage an actuary as an inde-
              pendent contractor'who,,   at the same time,
              is an actuary for: another: state Depart-:
              ment, there being no incompatibility     in
              such work, and there being no neglect of
              any State duties.
                                                   Yours very truly,
                                               ATTORNEY
                                                      GENERAL
                                                            OF TEXAS

                                                       G&2%-u
                                           e
                                                      Joe H, Greenhill
                                                      Executive Assistant


                                               APPROVED:


                                                 JG@-&-
                                               FIRST ASSISTANT
        JRG:erc