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Office of the Attorney General
State of Texas


July 28, 1998

Executive Director
Executive Council of Physical Therapy and Occupational Therapy Examiners
333 Guadalupe, Suite 2-510
Austin, Texas 78701-3942

Letter Opinion No. 98-055

Re: Whether a member of the Texas Board of Physical Therapy Examiners may simultaneously hold the office of county clerk (RQ-1094)

Dear Mr. Maline:

You have requested our opinion as to whether a member of the Texas Board of Physical Therapy Examiners may simultaneously hold the office of county clerk.

Article XVI, section 40, of the Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument. . . ." A county clerk holds a salaried position, but a member of the Board of Physical Therapy Examiners does not. A member is entitled, however, "to a per diem as set by the General Appropriations Act for each day that the member engages in the business of the Board." V.T.C.S. art. 4512e, 2A. This per diem payment is provided not in lieu of, but in addition to, "reimbursement for meals, lodging, and transportation expenses as provided by the General Appropriations Act." Id. Per diem for state board and commission members is set by the 1997 General Appropriations Act as $30 per day, in addition to "reimbursement of actual expenses for meals and lodging not to exceed $80 per day when traveling within the State of Texas," and "reimbursement of transportation and incidental expenses at the rates specified in this Act for state employees." Act of May 29, 1997, 75th Leg., R.S., ch. 1452, art. IX, 4, 1997 Tex. Gen. Laws 5535, 6355.

An "emolument" for purposes of article XVI, section 40, is any pecuniary profit, gain, or advantage paid to an officer, although it does not include the legitimate reimbursement of expenses. Attorney General Opinion DM-55 (1991); see Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944); see generally Attorney General Opinion MW-450 (1982). Even a token payment of $10 per meeting constitutes an emolument.(1) Willis v. Potts, 377 S.W.2d 622 (Tex. 1964); see Attorney General Opinion JM-1266 (1990). Since the $30 flat rate per diem created by statute exists apart from the reimbursements provided, there can be no question that the $30 per day payment is in excess of actual expenses. Any payment received in excess of actual expenses constitutes an "emolument." Letter Opinion Nos. 95-001 (1995), 93-033 (1993).

We conclude that a member of the Board of Physical Therapy Examiners holds an "office of emolument," and thus may not simultaneously serve as a county clerk. Furthermore, qualification for and acceptance of a second office operates as an automatic resignation from the first office. Pruitt v. Glen Rose Indep. Sch. Dist., 126 Tex. 45, 84 S.W.2d 1004 (1935). In the situation you pose, if the member of the Board of Physical Therapy Examiners accepts the office of county clerk, she will thus automatically relinquish her position on the board.

S U M M A R Y

A member of the Texas Board of Physical Therapy Examiners holds an "office of emolument," and is thus prohibited by article XVI, section 40, of the Texas Constitution from simultaneously serving as a county clerk.

      Yours very truly,

      Rick Gilpin
      Deputy Chair
      Opinion Committee


Footnotes

1. While the term "per diem" in some contexts has come to connote reimbursed meal expenses, the daily $30 payments in question clearly constitute compensation for services, and thus an "emolument" under article XVI, section 40.


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