Case Information

*1 R-515 GENERAL E i&lTOkEY OF’ TEXAS

Bon, Lo A, Woodss State Superintendent Dspartanant of Education Awtfn, Terra

l Ken, T, Y, Trimbls,

Att\Mtiafi:

Ffrst Assistant Opinion Non V-242

Its: Artthorfty of City AttornOf to some ad trustee of f* dependent school ., .~ district not IUU.W fclpally oontrollebp

Dear Sir:

We refer to your letter of reosnt date acknowl- 'edged by the Attorney General on may 26, 1947, wherein

you request an opinion from this office on the follow- ing questfonf

May the City Attorney serve at the same .' time as trustee of an independent sahool dfs- trfct, wh%ah dfstrfot is not au.nloipully con- tr6llsPl

Artiels XVIp Seotlon 40, Constitution of Texaas raade fsr parts

*Ro psraon shall hold or exerctleee at the same time, more than one civil offfoe of emo$a~

,. almtd * o*

Dual office holding is expressly forbidden by Sectfon 40, Atitfale XVX, of the Texas Constitution where both offfoes are ofvil offfoes of emolument, Dual offPoe holdi@ is forbidden extent at least by Section 33 of Article XVI wherein the acaountfng officers of the State are forbid&I to issue of pay a warrant upon the Treasur- er for the payment of salary or emlpensat fen to a cfvf 1 '~ @ffPcer, who at the same time holds another offfee

&t&a&r, trust, or profit under the United States or the State of Texasa *2 Hon. L, A, Wooda 0 Page 2

The oonstftutfonN pmhfbftfon against the

holdfng of more than one offfee of emolument (Art. XVI, Seq, 4C) fs inapplicable to the questfon under consfd- eratfon for the-reason that sfnoe a trustee of an fnde- pendent school dfstrfet serves wfthornt oompensatfon, his of emolument, State VP Martin, 51 SOW, ‘9s not en office 2dp 815; Attorney General Opinion O-3308, And sines nei- ther a City nor a trustee of an independent sahool dfstrfat are offices to be paid out of the State Treasury, Seotfon 33 of Article XVI fs not violated un; der the facts submlttedd

Hosver, ft is also a fundamental rule of law that one person may not hold at one time t%o offices, the duties of which are incompatible, and this princfple’ap- plb# whether or not the office is named in the exoep- tfona contained fn Article XPPp Section 40, Blenoourt t. Parker, 29 Tex, 558; State v. BrPnkerhoff, 66 Tex. 45; T-8 t0 Abernathy County Line Independent School Dfs- 3 trfot, 290 SOW0 152; Pnnett VP Olep Rose Independent

Sehool Dfstrfot, 84 SoW1. 26 1004.

Thfe prfnofple of law, fnoompatfbflfty of offf- oeao fe expreeaed clearly fn 22 R,C,L, 4P4$ par, 56; we fma Knwkles v. Board of Education ,of Bell County

uote fyo) 114 sow, 2d 511, p* 514, ae foPlowsn 7

*On8 of the most important testa as to whether offfo-es are fnoompatfble is found Pn the prfaefple that the fneompatfbflfty fs reaognfeeff whenever one fa subordinate the other 4n aome of its fmportant and pr4ncfpl.e duties, or fs aubjeat to 8upePrfsfan by the: other, or where a contrariety and antagonism’ would result in the attempt by one person to diseharg8 the duties of both, Under thfs two offfoes incompatible where prfnofple the fnewmbeot of me has the power to remove of the others though the aon- the frmmbent tl~anep on which the power may be exercsfsed ia. r c r oto l Bd it also exists where the ino ownbent 08 OIW offfrre haa the power of appofnt- aunt as to the other office, D 0 0 or to audit the l oao@satb of another, or to exercise a super- rlsfon Over another.n

Wo heoe aonsfdersd the statutea relative to the rmpeetfva du%fer fntWnbent. upon a City Attorney and a trwto8 o? fndependent senhool dfatriet which district *3 Hon. L. A, Woods - Page 3

is not municipally controlled but is governed exclusively by the laws appertaining to independent school districts.. in general S snd we aan oonoeive of no sound basis upon which it may be said tlat the offices incompatible. We have been unsble to find any statute providing that either offfoe~ to, under the dominion of s is accountable or subordinate to ths othar, or which provides that of- ther office has a right to interfere with the other in the performance of any official duty* War have we been apprised of any reason wh the duties of a City Attorney would be inconsistent or I n conflict with the duties a trustee of an independent school district which is not municipally controlled,

In Opinion 0-3906-A, this Department advised

that it is the function of the county or district attor- ney to advise the school officials of independent school. ! district8 oonasrnfng the school laws and to handle their ” litigations in contested eleotioss, and that therefore the offioes of county attorney and trustee of an fndepen- dent school district are incompatible. But this reason- ! ing would not apply to a Cft y Attorney.

It is our opinion, therefore, that the two off- faes in question are not incompatible s and that your sub- mitted auestion should be, and is, answered in ths afffr- matfve, - *jr hold .at the same time both 0~s person

.~ t~he offfoes ‘of City and trustee of an fndependent sohool dfstrict whfah is not munfcf- pally controlled,, the said offfoes being not in- compatible d

Very truly yours APPBPVED JuIa 10, 1947 AlTOFUUY GWWWRAL OF TWXAS 2i?LdiFa .,ur*

ATThEY GXRltEUU Chester ,E. Ollfaon

Asrfstaat