Untitled Texas Attorney General Opinion ( 1962 )

September 17, 1962
Iionorab;e_Jerry
- * nttorney Dellana Opinion No. hW-1442
county
Travis County Courthouse Re: Whether a person may hold
Austin, Texas the position of Tax Assesror
and Collector of an independ-
ent school district and at
_``_ the same time hold such
position in a county water
control and improvement
Dear Mr. Dellana: district and related questlone.
Your request for opinion from this office reads in part
as follows:
qThe'Banes IndependentSchool District col-
lects its own taxes and has employed a Tax
Aeaeesor-Collector,who alao is employed 88 a
Business Wanager of the Ranes IndependentSchool
District.. This same Tax Assessor-Collectoraleo
serves as Assessor and Collector of taxes of the
Travis County Water Control and Improvement Dis-
trict No. 10. Such employee does not re,sidein
the.Eanes IndependentSchool District."
"On March~3, 1959, Logan Cummings was hired
by both the Banes Independent School District and
Travis County Water Control and ImprovementDls-
trlct No. 10 as their joint Tax Assessor Collector.
"That he assumed the duties of both offices
on March 3, 1959.
"That all 1960 TaX Notices of both districts
were signed by Logan Cummings.
"That Logan Cummings continues to this date
to hold both offices.
"That ~3.t
is the understandingof this Trustee
that Logan Cummin 8 haa received a salary during
this period from $1) Texas Education Agency (2)
Eanes Independent School District (3) Travis
Honorable Jerry Dellana, page 2 (WW-1442)
County Water Control and ImprovementDistrict No.
lo.*
"1. I8 the above mentioned employee inhib-
ited by Art. 16, Sec. 40,.of the Texas Constitution
or any other provision of the Constitutionor stat-
utes from holding the following:
"(a) The nosition of Tax Assessor and Col-
lector of Ranes IndependentSchool District and
Travis County Water Control and ImprovementDls-
trlct Wo. 10 at the same time?
."(b) The position of Tax Assessor and Col-
lector of taxes of Ranee IndependentSchool_Dls-
.
trlct and Business Manager of Ranes Indepenaent
School District at the same time?
"(c)The positlon.ofTax Assessor and Col-
lectorof Ranes School Matrlct,.Business Manager
and .*ActingSuperintendent*at..thesame time?
w2. Does the law require the Assessor and
Collector of taxes for Ranes IndependentSchool
District to live within the Panes Indenendent
School Mstrlct as a qualificationto hold the
office?"
Section 40 Of Article XXI of the Constitutionof Texas
states as follows:
"Holding more than office; exceptions;right
to vote
"Sec. 40. No person shall hold or exercise,
at the same'tlme,more than one Civil Office of
emolument, except that of Justice of Peace, County
Commissioner,Notary Public and Postmaster,Offi-
cer of the National Guard, .theNational Guard Reserve,
and the Officers Reserve Corps of the United States
and enlisted men of the National Guard, the National
Guard Reserve, and the Organized Reserves of the
United States,and retired offlcers of the United
States Army, Navy, and.Marine Corps, and retired
warrant officers, and retired enlisted m&:&f!
the United States Army, Navy, and Marine Cor.ps,'
unlees otherwise.speclall;yprovlded',here.Ln;.Provided
Honorable Jerry Dellana, page 3 (\+W-1442)
that nothing in this Constitution shall be con-
strued to prohibit an officer or enlisted man Of
the National Guard, and the National Guard Re-
serve, or an officer In the Officers Reserve Corps
of the United States, or an enlisted man In the
Organized Reserves of the United States, or re-
tired officers of the United States Army, Navy,
and Marine Corps, and retired warrant offlcere,
a'd retired enlisted men of the United States
A!my, Navy, and Marine Corps, from holding in
conjunctionwith such office any other office or
position of honor, trust or profit, under this.
State or the United States, or from voting at any
Election; General, Special or Primary, In this
State when otherwise qualified." (Emphasis. added)
As to your,questionl,(a), .numerousopinions from this
office.haveheld that the positi,onsof Tax Assessor and Collector
of a county, independent school district, or of a conservation
distr.lctare all civil offices of emolument. Attorney General
Opinions Nos. o-6%.(193g), o-2687 (1940), and WW-1295 (1962).
Pruitt v. Glen Rose Independent School District, X26 Tex. 4.5, .84
W 2d 1004 (1935) W h b ffi th holdings and also
h&!l that a'county'watk :%3(oEnd ``pro``~entdistrict is a
separategovernmental~authorityand similar to a conservationand
reclamationdistrict; and that therefore two separate.officesof
emolumentare.involved. It is therefore a~vlolationof Section
,40 of.ArticleXVI for the same person 'tom hold both offic,esin
question.
We requested'specific informati,onas to when the man In
questionassumed the duties of one ~office,and when he assumed
the duties of the other. Your,reply then stated "On March 3,
1959, Logan Cummings was hired by both. . .'I Although he was
hired by both on the same day, he must have made his bond for one
district first, or done some act which indicated his assumption
of the duties of one office before the other. We quote 'from
Prultt v. Glen Rose Independent School District, supra, at page
1007:
"The text, 34 Tex,Jur. 354, 8 19, summarizes
the rule thus: 'Having elected to accept and
qualify for the second office, ipso facto and as
a matter of.law, he vacates the first office.
Thlo 13 true, where both offices are placec of
emolument regardless of whether they are ln-
me, and if they are 1ncompatibIe t=re
Honorable Jerry Dellana, page 4 (WW-1442)
Is a vacation of the first office regardless
of whether both a-e offices of,emolumentwithin
the meaning of the'Constltutlon. In such clr-
cumstances the constitutionalprovision that
all officers shall continue to perform the duties
of their offices until a 8uccessor has been
qualified does not apply."' (Emphasisadded)
The.questionas to which office has been vacated
depends on which office he assumed last. Since the Attorney
GeneralIs office does not determine questions of fact, we cannot
decide this question, but do hold that under the facts submitted
and the holding of the Prultt case, that there has been a vacation
by operation of law of theflce first assumed, in which case
the officeholdervalidly holds the second office.
Your question 1. (b.) presents a slightly different
sltua'tlon.There the problem concerns the same person's acting
as tax assessor-collectorand also.as business manager of t,he
same Independent school district. Heretofore such a question
has not been before this office.
Texas Jurisprudencedefines an office as follows:
"'Office'embraces the Ideas of tenure, dura-
tion, emolument;and duties. .Among the criteria for
determiningwhether an employment is a public office
are the following: the delegation of a portion of
.the sovereign functions of the gdvernment; the're-
quirement of an official oath; that the powers en-
trusted are conferred by law and not by contract;
and the fixing of the duration or term of office.
It 13 the duty pertaining to the office and~the,na-
ture of thatduty, and not the extent of authority
which makes the Incumbent an officer; and'one Is.
none the less an officer because his authority Is
confined to narrow limits." 34 Tex.Jur. 323;
A considerationof the position of business manager of
an independent school district leads u3 to the conclusionthat
such posltlon Is not a "Civil Office of emolument" as that phrase
Is used In the Constitution. Article 2791 of Vernohls Civil
Statutes provides for the specific position of tax assessor and
collector,and we find no law or any other authority giving rise
to the pooltion of business manager although,the trustees may
create the position if they deem it necessary. In addition the
duties OP such an employee are fixed by.contract and not conferred
,
Honorable Jerry Dellana, page 5 (NW-1442)
by law. It 13 aloo significantthat such employee ordinarily
serves at the discretion of the trustees, and that therefore
no specific term of office Is involved.
'. Since the gosltlon of business manager is not a "Civil
office of emolument, it follows that one serv1n.gas tax assessor-
collector may also serve as business manager. Aside from the
constitutionalprohibition of holding two civil offices at the
same lme, we f.indno incompatlbilltyresulting when one person
perfoEma both functions within the same district.
Many opinions from this office have heretofore held,
as with tax assessor-collectorsdiscussed above, that a super-
intendent of an lndetendentschool district holds a "clvll
office of emolument. Opinions Nos. O-7323 (1946), V-1244 (1951).
It therefore follows that It Is unconstitutionalfor the same
person to be tax assessor-collectorand superintendentor "acting
superintendent"of an'independentschool district at the same
time.
Opinlon'No.~WW-1412 (1962) properly.disposesof your
question No. ,2,which opinion held as follows:
"The tax assessor and collector of an lndepend-
dent school district is not a *civil officer1 wi,thln
the contemplationof SectIon 14 of Artlcle~XVI of
'theConstitutionor'Texa8 and would'not.haveto
reside within the territorial confines of such
school district."
This holding was based,on the case of Aldlne IndependentSchool
Dlstrictv. Standley; 154 Tax. 547, 28b'S.W.2d 576 n955) .
S U 13tiA R,Y
The positions 0r tax Gisessor-coilectoror an
'independentschool district or of 'a water.control
and improvement district, the superintendentoracting
superlntenden,tof an independent school district are
all civil offices of emolument, and It is a violation
of Section 40 of Article XVI of the .Constitutlonfor
one person to hold two or more of suah offices.
The pocltlon of business manager of an lndepend-
ent cchool district is not a ~1.~11~office of emolument,
and therefore a person holding such position may also
Honorable Jerry Deliana, page 6 (WW-1442)
hold any civil office of emolument In addition thereto.
The tax assessor-collectorof an independent
school district is not an officer of such district,
and need not reside within the boundaries of that
district.
Yours very truly,
WILL WILSON
Attorney General of Texas
Fred D. Ward
Assistant
FDW:wb':mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Arthur Sandlin
John Reeves
Bill Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore