Untitled Texas Attorney General Opinion

,~~~EATTORNEY GENERAL OF-TEXAS

PRICE DANIEL .4TTOR?awGENERAL September 22, 1952

Hon. Larry 0. Cox Executive Director Board for Texas State Hospitals and Special Schools Austin, +xas opinion. HO. V-152j Re: Construction of Texas Constitution, Article XVI, Sections 12, 33, and 40, as applied to certain employees and contractors who are receiving compensatlon~ Dear’‘iI9O Cox: from the uuited States. You have requested the opinion of this of-.. tlce~ on the following questions: . Is it In violation of the’Constitutlen to employ kd pay a art-time employee. at the Big P Spring Statue Hosplta who is also drawing pay as an enlisted man in the armed services of the United States? 2. Is it in violation of the Constitution to retain on our payroll a doctor who in no way neg- lects his duties to the State of Texas but who does after duty hours, act as an lndcpendent contractor )or the Veterans Administration (in this IdStanCe Di’. Rap C. Sloan of the Big Sprlng State Hospital)’ without monetary profit being received from the Veterans A&al& istratlon. f.or his services? 3* If your answer ‘to quest%on nQo@er two above Is In the afflr~matlvep .would 'It ‘differ. If Dr. t;yn; drew oompensatlon from the Veterans Admlnbtra-

4, I8 it In violation of the Constltutlem .” ‘.. for the Big Spring State Hospital to utlllse the aer--~ .. .,,~. vices. of an Independent contractor and pay him not as an employee but on a purchase* vouoher, when such a per- ron 18 on the yr&l$ of the Veterans Admlnlstratlon as an employee I@ e 09 Dr. Ca W. Atherton.)

HOII. Lury 0, Cox, page 2 (v-1527)

5. .Is It in violation of the Constltutien ,.for the B$g ‘Spring State Hospital to utlllee the ser- vices of an independent contractor and pay him not a8 an employee but on a purchase voucher, when such a person is in private practice and 1s not an employee of the Veterans Administration but does draw compensa- tion from the Veterans Administration as an independ- ent contractor as consultant? (E@g.,Br. J. C. Banker.) 6. Is It In violation of the Constitution for the Rexla State School and Hometo retain on Its payrolL four employees who are ex-servicemen of World ‘War 11, who are attending Veterans .4dminlstratlon School at night and of course, drawing compensation from the Veterans Aiminlstratlon for such training? . 7. In construlng both Sections 33’.and~40 of Article XVI0 is it unconstitutional t6 employ any of the above categories’of persons when they are pres: ently In the Rational Guard, the Rational Guard Re- ‘ serve9. or the Organized Re.serves of the United States? .There are three se&ions of Article xVI’of the Texas Constitution which .relate to,the subjeot : matter. of these que~st1ons.a Seotlon 12 statea: “lo memberof Congress nor person holding or exercising any o!flce of profit or trust under the United States, er el- ther of .Ihem, ‘or umder amy foreign power, shall be elig%ble as a notuber of the Leg- irlature or hold er exercise any offloo of proi or trust under this 'State.n section 33 provides: “The Accounting Officers of thi.s Stats shall.rrelther draw nor pay a warrant upon the Treasury in favor OS any person for salary or comp6nsatl,oa ,a8 agent, offi- ce*. or appointee who holds at the same time any other ojflce or position of honor, *rust or profit, under this State or the unlted States, excrpt.as prescribed In this Constitution. Provided, that this restric- tion as to the drawing .aud paylmg af’ war- rants upon the Treasury shall not apply to officera of tbs National Guard of Texas,

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Hon. Larry 0. Cox, page 3 (V-1527)

the National Guard Reserve, the Offi- cersReserve Corps of the United States, nor to enlisted men ~of then National Guard, the Kational Guard Reserve, and the ‘Organized Reserves of the United States, nor to retired officers of the United States Army9 Navy? and Marine Corps, and retired ~warrant ,offlcers ,and~. retired enlisted man of ,thp ,united States Army9 Navy,’ a,dd Marine Corp~~.~’.“. 7 And Section 40 says:’ “No person shall hold or exercise, at then same time, more ‘than one Civil Office of emolument, except that of Jus- tice of Peace, County Commissioner No- tary Public and Postmaster 0 . . a JGlus the same mjlitary personnel listed in Section 33/$ unless otherwise specially provided herein. Provided,.that nothing In this Constitution-shall be construed to prohibit . 0 u itary per- sonnel listed in Section 3 from hold- ing in conjunctionwith such office any other office .or posl,tion of, honor, trust or profit 9 under ‘this State or the ., United States, or from voting at any Election; General, SpeciaJ-.or Primary in this State when otherwise qualified.” Thus Section 12 prohibits a person from holding *any~o %fice of profit or trust” ,knder the State of Texqs if thst person holds such an office under the United States,. another state oft the Ubiol$, or a foreign power; section 40 prohibits the hold- ing of. mere, than one llcivil office of’ emolument” whether in the state or” federal government, certain civil and military offices or positions of “honor trust or profit” excepted; and Section, 33 ,prohl.bl&s payments of salary or compensation from the State Treasury to agents, officers or employees of the State’who at t.he same time hold another “office or position of honor, trust or profit” under the state or federal government) certain military personnel excepted y In answer to your first rqu0stion, we call your attention to two opinions of-the Texas Supreme

Hon. Larry 0. Cox, page 4 (V-1527)

Court which involved the exceptions in favor of cer- tain military personnel. $ktlsenter 135 SJ&2d 562 (, _ _, euDarQ, 140 TAX. 271, 167 SiWSci

In the first case, Carpenter, the Chairman and Executive Director of the Texas Unemployment Com- pensation Commission was commissioned and on active duty in the Army of ?.he United States as a result of being ordered to service as an officer of the National Guard. The Supreme Court held that he remained an OS- ficer of the National Guard within the meaning ofhi: exceptions in Sections 33 and 40 and therefore not vscated hls~~civil office; that ds mllltary’ap- pointment did not violate Section 12 of Article XVI of the Constitution$ and that mandamuswould lie to oompel payment of his salary as a state officer. The Cramer case concerned the existence of.. an off&e of temporary district judge which existence dspeti de.d on t h e status of the regdar judge. The regular judge who had ~recelved a temporary oommlsrlon and was on ackve duty In the Army of the United States, was held by the Supreme Court to have been ~onunissloned in the llOfficers Reserve Corps” within the meaning of Sections 33 and 40. For this reason the Court held t&it he was excepted from,the prohibitions of those sections, that he had not abandoned his civil offioe by accepting the commission, and that mandamuswould lie on behalf of his successor to compel payment of the successor”8 salary as temporary judge. The Court expressly pointed out that the exceptions to Seotlonsjj and 40 are not limited by but must control, Section 12: 3qbny other construction would render the amendments to Sections 33 and 40 mean- inglese, and would mean that the4r adoption by the people was an idle gesture. Then, too if it be contended that the amendmenta to Sections 33 and 40 are in conflict wlth Section 12 of Article 1.6, it must ba noted that such amended seations, Nos.,33 and !+O, are the latest expression of the will of the people, and any provision@ of the Con- stitution prevfously exlrting must, In case OS conflict, ield to them. State v. Brown- son, 94 Tex. t 36, 61 S.W. 3.143 Gillespie v’. Li htfoot 103 Tex. 359,.127 S.W. 799." (1%7 S,W.Jd at 152.)

Hon. Larry 0. Coxb page 5 (V-1527)

Pour opinion request and accompanying corre- spondence describe the enlisted men referred:to in your first question as llpart-tlme .emplopeeson The Assistant Auditor describes them as “part-time attendants.” We conclude that the nature of their relationship with the State is that of employment rather than a relationship in the nature of an 810ffice,a and, therefore, that none of. them hold “an office of profitTor* trustl~ or~‘“a civil office of emolument” wlthln the prohibition8 of Sec- t.ions 12 and 40 res eetively. Att’y Gen. Ops: V-303 (1947.) d-5349 f19b3vo Cf. Lowe v. Statq, 83 Tex. . Grim. i34, 201 S,W. 986 (19lm. However, each of these enlisted men receives from the State salary or conpensatlon as an employee, and this of,flce has construed the term “appolntee,8’ as used in’section 33, to ba a synonym of the term employ- * Attly Gen. 0~:. O-2607 (1940)e Therefore the pro- Elktidn of Section 33 mayyapply to these emiloyees depending on thk gnswers to two.?remaining questions~’ Is their *‘enlisted. status a ilposltkon of ?honor/: trust or profit,,. under * 0 . the United States”? If their hen- listed status is such a position, are any of these men within the exceptional categories enumerated In Sec- tion 33? There are no judiclel authorities tn point on the first question, ‘The Carnenter and’cramer, cases both concerned commissioned officers. But this office ha8 .previously held that Section 33 prohibited payment of twelve days 1’“vacation pay” to an enlisted man who was “drafted for service in the United States Army” from State employment 0 Attly Gen.Cp..G-3335 (1941). After quoting Section 33, that opinion concludes: ~~ItFrom the above It Is clear, without argument; that sunless a man falls within o*~e,$f <the+exceptlens provided In the seo- ond,!sentence,‘the Comptroller cannot issue him a warrant in consideratbon of any emA ployment by ,the State subsequent to the time he is enlisted In the Army, whether as an officer or, a private.” A fact determination of whether any of the en- listed men who have been employed at the Big Spring State Hospital fall within the exceptions enumerated in Section 33 cannot be made by this office from the lnform- ation furnished us. In making this deteru$nation iOr*

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Hon. Larry 0. Cox, page 6 (V-1527)

yourself, you are advised that it is not a violation of the Constitution to employ and compensate from the State Treasury enlisted men of the National Guard, the National Guard Reserve, the Organized Reserves of the United States, ox enlisted men who are retired from the United States Army, l?avy, or Marine Corps. And, under the holding of the Carnenter case, men who were. inducted into the service while in any of the above categories are excepted within the meaning of Section 33, .regardless of the fact that they ,may be clas~sified at present in a category not enumerated in Se&iota 33 o You are also advised t~hat it is consti- tutfonalto .employ and pay such enlisted, men even if they are not excepted from Section 33 provided they are paid from local funds rather than from funds in the State Treasuryi’ Letter Opinion dated May 19 1947 to .Ron. Cibb Gilchrist. As pointed out in hat opinion, it is the vie of this office that Section. 33 applies only to payments from funds in the State Treasury. Your second, third fourth and fifth ques- tions Eoncern.the effect of de&Ions 12, 33, and 40 on the practice of medicfne by independent c.ontrac- tars. As a matter of lnterpretatlon,,this office holds ~the view that one whose true relatton is that of Independent contractor does not occupy an “.office of profit or trust” under Section 12 nor a l’divil office of emolument” under Section 48, nor.does he occupy the status of “agent, offfcer or appointee” or ,hold an “office or position of honor, trust or profit” under Section 33. Consequently, these con- stitutional restrictions do not affect services that are rendered by independent contractors. This view is adopted in Attorney Generalls Opinions V-303 (1947) and V-345 (1947). The reasoning and authori- ties in support of thfs conclusion are set out with great care in those opinions, especially Opinion V-3O39 and they need not be repeated here. .. You predicated each of your original ques- tions on the asrumption thet the doctors lnqnlred about are in fact acting as independent contractors in rendering the 14extra-carrlcular~~ service. In .your supplemental request you asked the following: “In ~addftlen to the advice sought in.questions two, three four, and five, we desire ..the opln$on:a~ h ,your office as to whether or not Dr. Roy C; .,Sloan is an

Bon., Larry 0. Cox, ‘page 7 (V-1527)~ .

lndenenda!it contractor with the Vrte+ ads:Adminlstration; whether or not Dr. C. W. .Atherton is an independent ton- pae+,or with the Big Spring estate Bos- pital;. and whether or hot Dr. Se C. Banker is an independenta&&Taotar. ‘with the Veterans Admlniatratien a&/or the Big Spring State Hospital,a The existence of the rtetua of independent contractor depends upon the actual relationship ba- tween~the. contractor Lanathose with whomhe contracts. As pointed out In Opir$on V-303, the Supreme Court in

. “The, general ‘rule relating to lnde- penaent. 4ontractors rests upon certain recogniwa tests; although such testm are not necessarily concurrent. with each other, nor 18 each test in Stael.? aax- trolla3g. Such tests are: (1) The ‘UJP’ Y,dependent nature ~of his buainase; (2) this obligation to furnish naceseary .tools, plies and material to perform the ob; : 13 his Glght. to control; the. tiograrl 0 3 : the work, exuept aa to final resul*r; (4).' the Mine for which hs.is employcld;'and (5) the method of pqment, whether bp tfme or by the Job*” : Iou’have furnished us the foll~lng informa-. tlon about the actual relationship between the several doctors and the inetitutlons they s8rve: ‘. Dr.. Sloan’ I stat& .withthe ,Veter%; %lnistratior.$ Hospital~is’that “of consultant in neurology.. ana psycb%atry. He Is not a tnemberof the staff and dew not .take actual charge .of any patieiUk8 but acts 8trictlT in an advisory capacity, da- l$beratlng ulth and oounseLl.ing the patlemtr oi.staf?~physialans at their reques& llo furnIsha* his own tools, consisting of a stethoroope an&hammer, and .no supplies are . . . . med. Hfs consultations are held omlr qt nights and on holidays when he is offiioi&~ off duty at the B$g, Spring State Ho8pifal

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Eon. Larry 0. ~Cox, page 8 (V-1527)

.and only, at ,stih times as he may be cal&ea. H.ereceives a fee of $50.00 per consultation,. regardless of’ the tine ex- pended, and he Is ~paid from Vet.eranr, Ad- ministration Fea.Basis and contractual I

servf~e Ipnnas. II Dr. Athertonl,s status at the Big”S&g State Hospital is that of consultant in clfnical.ana gross pathol- .WY* Ha ifs snot a member of the hospital staff and he personally. furnishes what- ever. ? 001s ar,e required fn connection with his work at the hospital, which con- sists <of, advising, deliberating, and counsalling with staff physicians In con- nection vlth post-mortem examinations. He accepts consultation only at nights and ,011holiaaya when he, .is officially ofi dnty:from.the Veterans’ Administration HospitaL His coqpensatlon consists -of #EL50 per consultation which is paid by purchas?. voucher from the Rig Sprizq State Hosplt.alo . “Dr. J. C., Banker is a radiologist at. the Xalone-Began Clinicin B&g Spring and is a member’of the staff. HIS ,tools and supplies used there’ are furnIshed him by the clinic. He is responsible for the corn- pletc care and treatment of those patients assigned to him at the c1fnl.c~ He fs .em- playaa by the clinic eon a full-tfme~ .besis, but &a,financial arrangements with the clinic arej of ,,course unknown to this of- ffcep D~..Banker’s 84.atus with the Vater- ans’,&3mipistxat~ion Hospital 1s of consult- ant ‘in radiology. He is not a member of. the hospital staff and does not take,actual charge of any patients but cacts only fn an advisory capacity. 190tools or suppli6s are involved since his work consists of reading X-ray films and consulting tiith the staff physicians with regard tb Roentgeno- logical technique6 He accepts intermittent calls for consnltation and receives a fee of $50&O per conanltation, regardless of. the time expendail, which fee is paid from Voterans .Adtainietrat%on Fee Basis and

Don. Larry 0. Cox, page 9 (V-1527)

Contractual Service Funds. Dr. Bankers’s status at the Big Spi‘lng State Hospital is that Of consultant in i+adloxogy.. EIe is not a member of the hospital staff and does not take a,ctual~ char 6 .of patient,s. ” Iiis’duties consist of rea 2ing X-ray films with the staff physicians and consulting with .them wi.th regard to Floentgenological techniques., Do ,toole or supplies are tlsea. - He is avallable. for conF;,“;t”,; ohlp when called and receiv $37..50 per- ctisultatio&,, 2 rdless of, the .reg~ time. expended, which, fee is -paid by pur- chase voucher from the Big Spring ‘State Hospital.‘~ Based.,on an applicatiofi of the ab&e facts to the tests approved in the .tTyUs&case, aiagps~t is the opinion of this office t at Dr. Roy C, is an Independent contractor with the Veterans .Adqvln- istration,, that Dr. C. w.. .Atherton 20 an iudepeudeiae contractor. with the Big Spring State Hospital, and that Dr. .J.. c. Banker is au independent contractor with both~ the V.eterans Administration and the Big Spriug State Ho~spltal. Your. seooua question. becomes hypathet- ical in view of the statement above which .ihdiaates that D%. Sloan does. in ,fact receive ;eompensatfon from the Veterans ~Adminietrat.ior*r In re+affirmiug the.vfeQ adopted ho. OplEdon V-303 aud,in holding that doctors ar% renderlugthe de- scribed consulting services as independent contractors, we feel. compelled to’ point out that a number of earli.er opinions of this office holding unconstitutional cer- taip dual medlcal~ services did riot consider the poasi- billt~ that service might be rendered by an independent

’ we refer to opinions O-2607 (1940) O-306i -($hl) ~O-3788,(1941) O-5349 (3943) and O&525 .(L943jv None .o#, there opinions need be overr&led beoause eaah appears to.be e oorreot holdiug.on the facts’.submitted. It 1s apparent, ‘however, ‘that most .of, .fhe duel cervices held unconstltuti@nal in these opinions could with but. alight oha e in the facts, be~heWpei.iniseibie uhdef Qpia* v-$tL

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Hon. Larry 0. cox, page lo (v-1527)

Your sixth.: question, concerning -the ex- servicemen employed, atMexla State School and Home, .raises one Issue:’ Does a trainee attending a Veter- ans Administration night ‘school who is drawing com- ’ pensation for such training, hoid an “office of profit’ or trust,” a %ivil office of emolument v ‘or ,811“office or position of, honor, trust or profit under . m 0. the United States” within the mean& of Se~ctions’J2; 40, .ana33$ .respectively? ‘We. think it Is obvious’ that‘ these veter- ans are not officers of the’lJniteh States within the meaning of Sections 12; ‘33, mid 40. Hence the only issue raised relates to Section 33: Does a veteran pursuing sdch.tralning hold a “position of honor, trust or profit” under the. United States: The training or schooling of veterans of Worl’a War II eat the expense of the United States Is a’uthorizrd. tn Veterans Regulations promulgat.ed pur- suant to Chapter 12 Title 38 of the united States ‘Code., Title ‘38. codifies the federal Legislation :.deallng with ?Pensions Bonuses,. and Veterans’ Be- llef.” You ‘aidnbt in&ate in your opinion request whether the veterans, inquired about, were being tcalned under Part VII (Vocational, Rehabil$tation) ~br Part VIII (Edhcatlon of Veterans’) of Veterans Regulation ,Boo ,1(a) promulgated x.u@ef-3tj .%J.S.C,A. 9 Chapter 12.~ But Sn either event the, payments rec.efved during training are jlsabslstence al&wanctP gradted to the trainee- awing his:, satisfactory ,continuat&on of train- %ng’aCoordlng ts specifled:domaitidns~ #one of those conditions require work ‘or srrvlc@ .by ‘the trainee for or on behalf of the government.. The allowance i’s def- initely, not a wage or salary. All .of the benefits provided in Title 38 are In the nature of gratuities made available by Congress to persons who have ren-

ment and benefltod veterans by. iirtue of any of.~the provisions, of Title 38. Therefore, its 1s:the ,oplnion of ~this ‘office that a veteran pursufng a coarse ofstudy or training at .the expense of the United States,. during which he receives a subsistenc’e allowance,’ is not holding a

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Hon. Larry 0. Cqx, page 11 (V-1527)

“position of honor; .trust or profit under l v . the United States” within the meafilng o 3 Section 33. In answer to your seventh question, you are advised that by virtue of Sections 33 and 4-O it is constitutional for the State to emplqy persons in the categories inquired about by you, who are presently in the, National. $arcl,. the National Guard, Reserve, or ii;, v9ganized Reserves of the United. States. CarD,asq- . aDDa& m; Cramer v. Shewoarq,. #uor8*

.’ .It, is not ti violation 6f. Artic’k”XVI, Sections 12 and 40; Conskit~tion of. T’exas, to pay from the State Treasury employees at the Big Spring State Hospital who are also drawing pay as enlisted men in the armed services of the United States. How- ever, such employees are prohibited by Section 33 of this Article from being paid from the State Treasury for this employ- metit, unless they,were~members of the Na- ._,. tional Guard, thee Mational .Guard .Reservb; or the Organi.zed Reserves of the united States when~they were inducted into the ,service or .udess they are members of such units. at the present’ .timr or unless they are re,tired froni the mll.l,tery serd.f+e of the United States. The Texas .C~onsti$ution iinpases no pro- hibit,ions aga.inst engaging or paying.‘for services rdndered to the State by physi- dens as independent contractors. . I It is no violation of .the’ Texas,Con-. s’tltution for the Mexia States Sohool titid Home to retain on its payroll employees who are ax-servicemen of world War II attend- ing Veterans Administration school and who draw subsistence allowance during such training. Likewise, it is constitutional to employ at a State institution and to compensate from the State, Treasury pirrsons ,.,-who are presently in the Natiqnal. Gukrd, ,

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Hon. Larry Oo.Cox, page 12 (V-1527)

the National~Guard Reserve, or the Organ- ized Reserves of the United States. ,, ,yoprs very trw, PiiCB~DARIEL AmovED: Attorney General

E; Jacobson Revi~ewing Assistant ‘. Charles D. Mathews First Assistant Assistant

PR:wb

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