Case Information

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:. February 5, 1947 Hon. T. M. Trimble, First Assistant

State Superintendent of Public Instruction

Department of Education

Austin, Texas A. 0. Opinion No. V-63 He: County Commissioner, au-

, thority to serve as trus- , tee of independent school id district.

.? Dear Sir:

We refer ~you to your letter of recent date wherein you requested an opinion of this department eon - r .i theYfollowing submitted question: _ -- ., - : May a County Commissioner serve at

the same as trustee of-an independent

school district?

Article XVI, Section 40, Constitution of Texas, reads as follows:

"No person shall hold or exercise, at : the same time, more than one civil office of

emolument, except that of . . . county commis- si0ni.w . . . I*

Dual office holding is expressly forbidden by Section 4O;Article XVI of the Constitution where both offices are civil offices of emolument. Dual office hold- ing is forbidden to an extent at.least by Section 33 of Article XVI wherein the accounting'officers of the State are forbidden to issue or pay a warrant upon the Treas- urer for the payments of salary or compensation to a civil officer, who at the same time holds another of- fice of honor. trust, or profit under the United States or the State of Texas.

The Constitutional prohibition against the holding of more than ~ohe office of emolument (Article XVI, Section 40) isinapplicable to the question;under consideration for tvio reasons: (1) The office of Coun- (2) As the ty Cmmissiocei i; expressly excepted; trustee serves without compensation, his is not an

Hon. T. M. Trimble, Page ,2,~v-6)

office of emolument. State v. Martin, 51 S. W. (2d) 815; Attorney General Opinion o-3308. And since neither a County Commissioner nor a trustee of an in- .

dependent school district are officers to be paid out .of the State Treasury, we do not believe Article XVI, Section 33 of the Texas Constitution is violated un- der the facts submitted. Attorney General Opinion Ro.

O-3308 and O-3352.

Bowever, it is aiso a fundamental rule'of law that one person may not hold at one two offices, the duties of which are incompatlble~, and this princi@s applies nhether or notthe office is.named in the excep- tion contained in Article. XVI, Section 40, Bieacourt V.

Parker, 27 Texas 558; State v. Br~inkerhoff,,66 Texas 45; Thomas v. Abernathy Countg~Line Independent School Dis- .- trict; 290 3. W; 152; Attorney General Opinions Numbers

O-4957 and O-5145. -'Pruitt-v. Glen Rose Independent School District, 84 S. W. (Zd) 1004.

This principle ef flaw, incompatibility of of- !&es, is expressed clearly-.in 22 R. Ct L. 414, par. 56; we quota from Knuckles v. Eoard of Educationof Bell.

County, (IZentucky) 114 3. W. (2d) 511, at page 514., as follows:

"One of the most important tests as to whether offices are -incompatible is found in the principle that.the incompatibility is rec- ognized whenever one is subordinate to the oth- er in some ofits important and principal duties, or iS subject to supervision by the other, or where a contrarity and antagonism would result in the attempt by one person to discharge the duties of both. Under this<principle two of- fices are incompatible where the incumbent of one has the power to remove the incumbent of the other, though the contingency on which the power may be exercised Is remote, and It also exists where the incumbent of one office has the power of appointment asto the other of- fice, or to audit the accounts of anbthzr, or to exercise a supervision over another.

We have considered the statutes relative to the respective duties incumbent upon a county commis- sioner and a 'trustee of an independent school district, and we cati conceive of no sound basis upon which it *3 I

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Hon. T. hf. Tritible, Page 3, v-63

may be said that their respective offices are lncom- pcltible. We have been unable to find any statute pro- vidin$ that either office is accountable to, under the dominion of, or subordinate to then other, or which provides that~ either office .has a right to in- terfere vith the other in the performnce of any of- ficial duty. Nor have; vs been appraised of’ any rea- .k.. son why the duties of ‘a county commissioner would be inconsistent or in conflict with the duties OS a tms- tee of an independent school district.

It is our opinion’ therefore that the two.

offic’es in question are not’incompatibie, and that your submitted question should be, and is, answered in the affirmative. ,_ 1. ~_;_. _. smm

..-. -.~ -- . One’person may hold at the same time

both the offices of county commissioner and trustee. of an independent school district, the said offices being not incompatible. Very truly yours, ATTORRRY GRNERAL OF TEXAS $?y&$&)

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BY< Chester E. Ollieon Aseistatlt mo:mtmrj

APPROVE3 PRB. 5, 1947 ATTORW GERERAL OF TEXAS APPROVRD OPWIOB COMMITTRB ^[1] . . BY BWR , CRAIRRAN