Case Information
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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
F. 4
Honorable 2. M. Trimble, First Assistant State Superintendent of Pabllo Instruction Austin, Texas
Dear Sir:
Opinion No. 0-3308 Re: Is it legal for a Deputy Sheriff of Orimo County to forry at the same time as a sohool-trustee of a sopmon sohool district of said county?
Your written requert dated March 18, 1941, has been received by this department and considered.
We copy from your letter as follows: "At the regdent of Mr. M. B. Thomas, Gounity Superintendent of Orimo County, I am submitting the following question for your consideration and opinion: [2] 'Is it legal for a Deputy Sheriff of Orimo County to asive at the same time as a sobbol trustee of a -opmon sohool district of said county?"
According to Article 16, Section 40, of the Texas Constitution, as amended in 1932, No person shall hold or exercise, at the same time, more than one civil office of omolument, (with certain exceptions noded in the Constitution which are not applicable to your proposition) unless otherwise specially provided herein.
In the cases of Maryy v. State. 67 B. W. (2d) 274; State v. Brooks, 42 Tex. 62; and Travis v. Harris, 13 Tex. 507, it has been held that a deputy sheriff is a public officer.
It has been held that school trustess are public officers. See 34 Texas Jurisprudence p. 332.
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Nonorable T. M. Trimble, Page 2
In the case of state v. Martin, (Gt. Giv. App.) 51 B. W. (24) 815, the court held that a sohool trusteeship vas mot an office of emolument. The court said: "The constitutional provision does not, per se and as a matter of lav, prohibit a persom from holding the office of school trustee while also holding another public office, for the simple reason that provision applies, arbitrarily, only to 'civil office (s) of emolument,' whereas the office of trustee of the Laredo independent achool district is not one of 'emolument,' since the holders thereof 'shall serve without compensation.' Article 2775, R. S. 1925; 1 Bouvier's Lev Dict. (3d Ed.) 1035; Black's Lev Dict., 321; 8 Words & Phrases, First Series, 2367; Graves v. M. Griffin O'Heil & Sons (Yex. Civ. App.) 189 S. W. 778."
The court in the Martin case, supra, had before it the question of whether or not the same person could hold the office of eity tax assessor and at the same time hold the office of trustee of a achool district. After holding, as noticed above, that the office of achool trustee is not a civil office of emolument within the constitutional prohibition, the court then proceeded to concern itself with the question of whether or not the two officers entailed duties that were inconsistent and incompatiable. The gourt said: "o o o. The duties of the two offioes are wholly unrelated, are in no manner inconsistent, are never in conflict. Neither offieor is acoountable to the other, nor under his dominion. Neither is subordinate to the other, nor has any power or right to interfere with the other in the performance of any duty. The offioes are therefore not inconsistent or incompatiable, and, one of them not being a 'civil office' of emolument,' both may be oocupied and the duties thereof lavfully performed by the same person. 22 R. C. L. p. 412 et seq; 46 O. J. pp. 941 et seq., 8846 et seq.; Case note L. R. A. 191'A, 216; Seal v. Townsend, 77 Tex. 464, 14 B. W. 365; Figures v. State (Yex. Civ. App.) 99 B. W. 412 ."
We find no express statutory provision forbidding a trustee of a common achool district to receive any compensation
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Honorable 9. M. Trimble, Page 3
for serving as such. However, there is no statutery authority providing for compensation for such offieor and therefore vo believe that it is "sivil office" without any "emolument" and therefore the rule in the Martin case, supra, is applicable to your proposition. In viev of the deoision in that case that the office of a achool trustee is not a "sivil office of emolument" within the omatitutionel prohibition, ve are thus confronted with the question of whether or not a depaty sheriff of Grimes County can serve as a achool trustee of a common achool district in that county without the duties of each respective office becoming inconsistent or incenpatt:ble.
In the case of Thomas, et al v. Abernathy County Line Independent School District, 290 S. W. 152, (Com. App.) the test of what constituted incompatible duties vas given as follows: "In our opinion the officea of achool trustee and alderman are incompatible; for under our system there are in the city council or board of aldermen various directory or supervisory powera exertable in respect to achool property located within the city of town and in respect to the duties of achool trustee performable within its limits--e. g., there might well arise a confflet of discretion or duty in respect to health, quarantine, sanitary, and fire prevention regulations. e e o. If the same person could be a achool trustee and a member of the city council or board of aldermen at the same time, achool policies, in many important respocts, would be subject to direction of the council or aldermen instead of to that of the trustees." (Undertecoring oura)
In view of the foregoing rules of lav, ve have carefully considered the respective duties of a deputy sheriff and of a achool trustee of a common school district and ve have been unable to find where any of the duties falling upon a holder of each respective office would necessarily be inconsistent with or incompatible with the duties of a person holding the other office. Neither do ve find any corresponding duties of either of said offices which would necessarily unduly influencea the duties imposed by lav upon the holder of the other office.
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Honorable 9. M. Trimble, Page 4
Since neither a deputy sheriff or a common achool district trustee are officers to be paid out of the State Treasury, ve do not believe Article 16, Beetion 33 of the Texas Constitution 18 applicable to your proposition.
It 18, therefore, our opinion and you are respectfully advised that there 10 no prohibition in the laws of this state which would prevent a deputy sheriff of Grimea County to serve at the same time as a achool trustee of a common achool district in said county.
We trust that ve have fully answered your inquiry. Very truly yours ATTORNEY GENERAL OF TEXAS By Hared 708 Irsocter Harold MoOracken Assistant
EW: 88
APPROVEI MAF 28, 1941 Rereed. murn ATTORNEY GENERAL OF TEXAS