Untitled Texas Attorney General Opinion ( 1961 )

E NEY GENERAL
6F TEiXAS
Honorable Joseph C. Ternus Opinion No. WW-1110
County Attorney
San Patrlclo County Re: Whether County School
Sinton, Texas Trustees are elective
county and precinct
officers as used in
Article XVI, Section
Dear Mr. Ternus: 64 of the Constitution.
We are in receipt of your letter In which you ask
for an interpretation of Article 2676 of Vernon's civil
Statutes, as amended by Acts of the 55th Legislature,
Regular Session, 1957. In your letter you stated that
it was your opinion that that portion of Article 2676
which relates to the terms of office of a county school
trustee, providing for terms of office of two years, is
unconstitutional, being In conflict with Section 64 of
Article XVI of the Texas Constitution.
Section 64 of Article XVI of the Texas Constitution
provides as follows:
"The office of Inspector of Hides and
Animals, the elective district, county and
precinct offices which have heretofore had
terms of two years, shall hereafter have
terms of four years; and the holders of such
offices shall serve until their successors
are qualified."
Article 2676 of Vernon's Civil Statutes states as
follows:
"Section 1. The general management and
control of the public free schools and high
schools in each county, unless otherwise pro-
vided by law shall be vested In five (5) county
school trustees elected from the county, one (1)
Honorable Joseph C. Ternus, page 2 (WW-1110)
of whom shall be elected from the county
at large by the qualified voters of the
county and one (1) from each Commissioner’s
Precinct bv the auallfied voters of each
Commlaslon&~s Precinct, who shall hold~of-
fice for a term of two (2) years. The time
for such election shall be the first Saturday
in April of each year; the order for the election
of county school trustees to be made by the
county judge at least thirty (30) days prior to
the date of said election, and which order shall
designate as voting places within each common
or independent school district the same voting
place or places at which votes are cast for the
District Trustees of said common and Independent
school districts, respectively. The election
officers appointed to hold the election for Dls-
trlct Trustees in each of said school districts,
respectively, shall hold this election for county
school trustees.
“Sec. 2. It shall be no valid objection
that the voters of a Commissioner’s Precinct are
required by the operation of this Act to cast
their ballots at a polling place outside the
Commissloner Is Precinct of their residence.
“Sec. 3. Each year there shall be elected
alternately two (2) county school trusteee and
three (3) county school trustees In each county.
All vacancies shall be filled by the remaining
trustees. All elections heretofore held in ac-
cordance with the foregoing provisions of this
Act are hereby In all things validated and all
truateea so elected shall continue to hold office
until the expiration of the term for which they
were originally elected. ” (Emphasis added)
There can be no question that a county school trustee
Is holding a public office. In Volume 34, Texas Jurls-
prudence at page 322, It Is said:
“Many judicial definitions of a ‘public
office’ are to be found In the reported case8
I .
Honorable Joseph C. Ternus, page 3 (WW-1110)
.
but they are substantially of the same Import.
It is said to be a right to exercise a public
function or employment and take the fees and
emoluments belonging to It; ‘a public station
or employment conferred by the appointment of
government; ( and ‘the right, authority and duty
created and conferred by law, by which, for a
given period, either fixed by law, or enduring
at the pleasure of the creating power, an lndivi-
dual Is invested with some portion of the sover-
eign functions of the government, to be exercised
by him for the benefit of the public. I The lndi-
vidual so Invested is a public officer. He is a
person who exercises some functions of the govern-
ment - one who is commlasloned or authorized to
perform any public duty. ”
Also see Klmbrou
Knox?. v. Burnett, 93 Tex. 301 55 S.W. 120, 122
(1900), and Johnson, 141 S.W.2d 696 (Clv.App. 1940,
error ref. )
Article 2683, Vernon’s Civil Statutes, and 37 Tex. Jur.
930 refer to such trustee as being a coul;fty school trustee.
It follows that holding a “public office In this capacity
classifies such person as a county officer.
At the Qeneral Election In November., 1954, the voters
adopted Section 64 of Article XVI as part of the Texas Con-
stitution, which, in effect, changed the terms of certain
offices In Texas from two to four years. These offices in-
cluded the Inspector of Hides and Animals, the elective dis-
trict, county and precinct officers which theretofore had
terms of two years.
Prior to the amendment of Article 2676 by the Legis-
lature In 1957, said Article provided that county school
trustees were to hold this office for a term of two years
and that elections were to be held each year, and that they
shall be elected alternately, two county trustees and three
county trustees. The Legislature In 1957 carried over into
the amended statute this same term of office. This, In our
opinion, was unconstitutional as it violated Section 64 of
Article XVI of the Texas Constitution.
The Legislature, In amending Article 2676, Vernon’
s
Civil Statutes (Acts 55th Legislature, 1957, ch. 473, p.
1383) provided the following savings clause:
. ,
Honorable Joseph C. Ternus, page 4 (Ww-1110)
"If any provisiona of this Act or the ap-
pllcatlon the'eof to-any person or circumstances
is held lnvalld, such lnvalldlty shall not affect
other provisions or applications of the Act which
can be given effect without the Invalid provision
or application, and to this end the provisions of
this Act are declared to be severable."
The Supreme Court of Texas held in Jordan v. Crud&n&-
ton, 149 Tex. 237, 231 S.W.2d 641 (1950), at page b46:
"As a result of striking from the Act the
three provisions above discussed, must the Act as
a whole be condemned? We have concluded that
that result does,not follow. The Act provides
that 'If any Section, clause or part of this Act
shall be held invalid, it Is hereby declared to
be the Intention of the Legislature that the re-
mainder thereof not held invalid shall remain in
effect, and the validity of the remainder of this
Act shall not be affected therebyaV Section 15.
Since the above provisions of the Act violate manda-
'tory and exclusive provisions of the Constitution,
It is our duty to carry out the express Intent of
the Legislature by substituting the constitutional
provisions for the provisions of the Act which
they condemn, with the result that jury trials In
the court in question shall be had before juries
of twelve men. Norman v. Giles, Tex.Sup., 219
S.W.2d 678; Greene v. Robison, 117 Tex. 516, 8 S.W.
2d 655. With those constitutional provisions read
Into the Act it is our conclusion that It is a
valid exercise of the legislative power; that is to
say that none of the objections urged by the respond-
ent is valid."
Because of the above mentioned savings clause, together
with the holding of the Supreme Court of Texas in the last
cited case, It Is our opinion that only that portion of
Article 2676, Vernon's Civil Statutes, which pro;Cl;;&l;or
two year ,terms of office la unconstitutional.
necessarily follow that these elections would be held every
two years rather than every year, and the terms of office
are four years rather than two.
I .
Honorable Joseph C. Ternus, page 5 @W-1110)
SUMMARY
That portion of Article 2676, Vernon's
Civil Statutes, as amended, which pro-
vides that the term of office of a
County School Trustee Is for two years,
la unconstitutional as being in vlola-
tion of Section 64 of Article XVI of
the Texas Constitution.
Yours very truly,
WILL WILSON
Attorney General of Texas
Leon F. Pesek
LFP:am:zt Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
* *.
Virgil Pulllam
L. P. Lollar
Maston Courtney,
Dudley McCalla
RHVIHWHDFOR THE AT'IDRNHY
GENERAL
BY: Morgan Nesbitt