Case Information

*1 February 22, 1988 Jrm MATTag ATMRNEY -ERAI.

Honorable Joe Warner Bell Opinion No. JR-862 Trinity County Attorney

P. 0. Box 979 Re: Whether a school dis- Groveton, Texas 75845 trict employee may be com-

pensated for serving as an election clerk, and related questions (RQ-1310) Dear Mr. Bell:

You request advice on the following questions: (1) May an Independent School District for work done as an election clerk on a day off from school employment?

(2) May an employee of a County Road and Bridge Department also serve part-time as a city police officer?' May he be compensated for both offices?

You advise us that the off-duty served as a clerk at a constitutional amendment election and was compensated by the county. We note that a school employee is prohibited from serving as an election clerk at a contested election for a school district trustee position. $&g Elec. Code 532.054.

Attorney General Opinion JM-485 (1986) addressed matter of the state constitutional prohibition dual office holding as follows:

The prohibition in the Texas Constitution

against dual office holding one person from holding more than one 'civil office of emolument' at one time. Tex . Const. art. XVI, 540. The courts have held that a person holds a 'civil office' purposes of that provision if he exercises any sovereign function of government for the *2 Honorable Joe Warner Bell - Page 2 (JM-862)

benefit public and is largely independent of others' control. RUiZ t State, 540 S.W.2d 809, 811 (Tex. Civ. APP.~- Corpus Christi 1976, no writ); Til ev Roaerg, 405 S.W.2d 220, 224 (Tex. Civl Aps: - Beaumont 1966, writ ref#d n.r.e.); Aldine m Dendent Sch 01 District v. Standlee , 280 S.Wy2d 578, 583O(Tex. 1955).

While you do not inform us of the duties of the person who is the subject of your first inquiry question posed reflects that the individual is an emDlovee of the school district. It has been held that a teacher is an employee and not an officer within the meaning section 40 of article XVI of the Texas Constitution. ti v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi Nor does an election clerk possess independent authority. His duties and working hours as an election clerk are determined by the presiding judge of the election. Elec. Code 5532.071, 32.072. Because neither a teacher nor an election clerk is an "officer," the off-duty does not violate the dual office prohibition by serving a

You express concern that Attorney General Opinions WW-230 (1980) and JW-118 (1983) cast doubt on whether a may be compensated for serving as an election clerk.

The factual background in your inquiry is distin- guishable from the circumstances which led to the question addressed in those opinions. In Attorney General Opinions JW-118 and MW-230 it was found that public school teachers receiving compensation from state funds might serve as members of a city council only if they receive no salary for service on the city council. The prohibition compensating the school teachers for service on the city council was based on that portion of article XVI, section 40 of the Texas Constitution which provides as follows:

State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees other p.

,

Honorable Joe Warner Bell - Page 3 (~~-862)

individuals shall receive no salary for serving as members of such governing bodies.

Since an election clerk is not a member governing body of a school district, city, town or other governmental body, a school employee is not prohibited from receiving for duties performed as a clerk at a constitutional

The common law doctrine of incompatibility one person from holding two positions if the duties are inconsistent or in conflict or if one position is subordinate to another. Attorney General Opinion JW-519 (1986). We are unable to find any inconsistency conflict in the duties of an election clerk at a constitu- tional amendment election and those of an off-duty school employee. Nor do we find that one position is subordinate to the other. Inasmuch as we find no conflict in duties here, we need not determine whether the doctrine incompatibility applies to two positions, where at least one is not an "office."

you refer to the person who is the subject of your second question as an "employee of the county road and bridge department" and "a road worker." This identifica- tion of his type of employment would negate any concern that his position with the county would be defined as a "civil office" so as to bring him within the constitution- al prohibition of holding dual offices.

In Attorney General Opinion JW-485 it was found that of incompatibility does not pro- the common law doctrine hibit someone from serving simultaneously as a constable and a jailer. The prohibition against one position being subordinate to the other was addressed as follows:

The common law doctrine of incompatibil- ity prohibits one person from occupying two offices when one office may 'thereby impose its policies on the other or subject it to control in some other way.' Attorney General Opinions JW-129, JW-133 (1984); see Thorna 5 v.

S ho01 Di trict 290 S.W. 152 (Tex. Comm*n Aip. 1927: holding approved) :State v. Martin 51 S.W.Zd 815, 817 (Tex.

Civ. App. - San Atonio We find it unnecessary to delineate the duties of a county road and bridge employee and a part-time

P. *4 HOnOrable Joe Warner Bell - Page 4 (JM-882) officer in concluding that one of these positions employment may not impose its policies on the other or subject it to control in some other way. Nor do we find that one position's duties are inconsistent or in conflict with the other.

An off-duty independent school district employee may receive compensation for services performed as a clerk at a constitutional An employee of the county road and bridge department may serve as a part-time police officer and receive compensation from both positions.

SUMMARY

An off-duty independent school district

employee may services performed amendment election.

employee of the county road and bridge department may serve as a pa*-time officer and receive compensation for both positions.

JIM MATTOX Attorney General of Texas WARYEELLER

First Assistant Attorney General

IOU MCCREARY

Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee

Prepared by Tom G. Davis

Assistant Attorney General