Texas Attorney General Opinion: JM-847 Page: 4 of 8
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Honorable David H. Cain - Page 4 (JM-847)
Opinions of this office have construed the term
"office or position of profit" as it appeared in former
article XVI, section 33, of the Texas Constitution, which
prohibited the state accounting officers from paying the
salary of any
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. . .
S.J.R. No. 7, Acts 1925, 39th Leg., at 680.
Attorney General Opinion 0-2798 (1940) considered
whether a criminal district attorney could be compensated
for representing the state in a civil suit at the request
of the Attorney General's Office. The criminal district
attorney was an officer subject to the prohibitions of
former article XVI, section 33. The opinion concluded,
however, that his employment as an attorney in one case
did not make him the holder of another "office or position
of honor, trust or profit." The opinion stated:
If that were the case, every practicing
attorney would hold as many 'positions . . .
under the State' as he had clients with
pending suits. This is not the meaning of
the word 'position* in this connection.
Attorney General Opinion 0-2798 (1940). . Washinaton v.
Walker County, 708 S.W.2d 493 (Tex. App. - Houston [1st
Dist.] 1986, writ ref'd n.r.e.).
Attorney General Opinion V-371 (1947) concluded that
a state employee could receive a jury fee for serving as a
juror while on state payroll. The opinion pointed out
that neither a grand juror nor a petit juror holds an
office within the meaning of the constitutional provisions
prohibiting the holding of two offices. Nor did a juror
hold a "position of honor, trust or profit, under this
State," within former article XVI, section 33, of the
Texas Constitution. It cited the following rule from
cases of other states that
[a) 'position' is analogous to an 'office',
in that the duties that pertain to it are
permanent and certain. . . . (Emphasis
added by Attorney General Opinion.)p. 4100
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-847, text, January 26, 1988; (https://texashistory.unt.edu/ark:/67531/metapth273285/m1/4/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.