Untitled Texas Attorney General Opinion ( 1988 )

February22, 1988
Jrm MATTag
ATMRNEY -ERAI.
Honorable Joe Warner Bell Opinion No. JR-862
Trinity County Attorney
P. 0. Box 979 Re: Whether a school dis-
Groveton, Texas 75845 trict employee may be com-
pensated for serving as an
election clerk, and related
questions (RQ-1310)
Dear Mr. Bell:
You request advice on the following questions:
(1) May an Independent School District
school employee receive compensation for
work done as an election clerk on a day off
from school employment?
(2) May an employee of a County Road and
Bridge Department also serve part-time as a
city police officer?' May he be compensated
for both offices?
You advise us that the off-duty school employee
served as a clerk at a constitutional amendment election
and was compensated by the county. We note that a school
employee is prohibited from serving as an election clerk
at a contested election for a school district trustee
position. $&g Elec. Code 532.054.
Attorney General Opinion JM-485 (1986) addressed the
matter of the state constitutional prohibition against
dual office holding as follows:
The prohibition in the Texas Constitution
against dual office holding prevents one
person from holding more than one 'civil
office of emolument' at one time. Tex .
Const. art. XVI, 540. The courts have held
that a person holds a 'civil office' for
purposes of that provision if he exercises
any sovereign function of government for the
p. 4180
Honorable Joe Warner Bell - Page 2 (JM-862)
benefit of the public and is largely
independent of others' control. RUiZ t
State, 540 S.W.2d 809, 811 (Tex. Civ. APP.~-
Corpus Christi 1976, no writ); Til ev
Roaerg, 405 S.W.2d 220, 224 (Tex. Civl Aps:
- Beaumont 1966, writ ref#d n.r.e.); Aldine
m Dendent Sch 01 District v. Standlee , 280
S.Wy2d 578, 583O(Tex. 1955).
While you do not inform us of the duties of the
person who is the subject of your first inquiry the
question posed reflects that the individual is an emDlovee
of the school district. It has been held that a teacher
is an employee and not an officer within the meaning of
section 40 of article XVI of the Texas Constitution. ti
v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi
1976, no writ). Nor does an election clerk possess
independent authority. His duties and working hours as an
election clerk are determined by the presiding judge of
the election. Elec. Code 5532.071, 32.072. Because
neither a teacher nor an election clerk is an "officer,"
the off-duty school employee does not violate the dual
office prohibition by serving as a clerk at a
constitutional amendment election.
You express concern that Attorney General Opinions
WW-230 (1980) and JW-118 (1983) cast doubt on whether a
school employee may be compensated for serving as an
election clerk.
The factual background in your inquiry is distin-
guishable from the circumstances which led to the question
addressed in those opinions. In Attorney General Opinions
JW-118 and MW-230 it was found that public school teachers
receiving compensation from state funds might serve as
members of a city council only if they receive no salary
for service on the city council. The prohibition against
compensating the school teachers for service on the city
council was based on that portion of article XVI, section
40 of the Texas Constitution which provides as follows:
State employees or other individuals who
receive all or part of their compensation
either directly or indirectly from funds of
the State of Texas and who are not State
officers, shall not be barred from serving
as members of the governing bodies of school
districts, cities, towns, or other local
governmental districts; provided, however,
that such State employees or other
p. 4181
,
Honorable Joe Warner Bell - Page 3 (``-862)
individuals shall receive no salary for
serving as members of such governing bodies.
Since an election clerk is not a member of the
governing body of a school district, city, town or other
governmental body, a school employee is not prohibited
from receiving compensation for duties performed as a
clerk at a constitutional amendment election.
The common law doctrine of incompatibility prevents
one person from holding two positions if the duties are
inconsistent or in conflict or if one position is
subordinate to another. Attorney General Opinion JW-519
(1986). We are unable to find any inconsistency or
conflict in the duties of an election clerk at a constitu-
tional amendment election and those of an off-duty school
employee. Nor do we find that one position is subordinate
to the other. Inasmuch as we find no conflict in duties
here, we need not determine whether the doctrine of
incompatibility applies to two positions, where at least
one is not an "office."
you refer to the person who is the subject of your
second question as an "employee of the county road and
bridge department" and "a road worker." This identifica-
tion of his type of employment would negate any concern
that his position with the county would be defined as a
"civil office" so as to bring him within the constitution-
al prohibition of holding dual offices.
In Attorney General Opinion JW-485 it was found that
the common law doctrine of incompatibility does not pro-
hibit someone from serving simultaneously as a constable
and a jailer. The prohibition against one position being
subordinate to the other was addressed as follows:
The common law doctrine of incompatibil-
ity prohibits one person from occupying two
offices when one office may 'thereby impose
its policies on the other or subject it to
control in some other way.' Attorney
General Opinions JW-129, JW-133 (1984); see
Thorna5 v.
S ho01 Di trict 290 S.W. 152 (Tex. Comm*n
Aip. 1927: holding approved) :State
v. Martin 51 S.W.Zd 815, 817 (Tex.
Civ. App. - San Atonio 1932, no writ).
We find it unnecessary to delineate the duties of a
county road and bridge employee and a part-time police
P. 4182
HOnOrable Joe Warner Bell - Page 4 (JM-882)
officer in concluding that one of these positions of
employment may not impose its policies on the other or
subject it to control in some other way. Nor do we find
that one position's duties are inconsistent or in conflict
with the other.
An off-duty independent school district employee may
receive compensation for services performed as a clerk at
a constitutional amendment election. An employee of the
county road and bridge department may serve as a part-time
police officer and receive compensation from both
positions.
SUMMARY
An off-duty independent school district
employee may receive compensation for
services performed as a clerk at
constitutional amendment election. 2
employee of the county road and bridge
department may serve as a pa*-time police
officer and receive compensation for both
positions.
JIM MATTOX
Attorney General of Texas
WARYEELLER
First Assistant Attorney General
IOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4183