Untitled Texas Attorney General Opinion ( 1962 )

THEATTORNEYGENERAL
OF TEXAS
Honorable J. W. Edgar Opinion No, WW-1364
Commissioner Of Education
Texas Education Agency Re: Whether Section 33 of Article
Austin, Texas XVI or any other provision of
i the Texas Constitution or
statutes prohibits a Univer-
sity Professor or Lecturer
from receiving their pay from
the University while holding
i the position of a trustee of
an independent school district,
Dear Mr. Edgar : and other questions.
I
You have requested an opinion from this office upon the
following questions :
*IaD Does Section 33, Article XVI or any other
provision of the Texas Constitution or statutes pro-
hibit such a Professor or Lecturer from receiving
their pay from The University of Texas, while hold-
ing an office or position as a member of a Board of
Trustees of an independent school district? That is
to say, the exception as to reserve and retired of-
ficers, does it have application here?
“b ., Should the wfves continue to serve9 fs
their term for the unexpired term for which their
husbands were elected or only until the next regu-
lar trustee election?f’
The facts surrounding the questions posed reveal that a ~,
full-time Professor at the University of Texas and a Lecturer in
Business Law at the University of Texas were both elected to serve ‘:
as members of the Board of Trustees of an independent school dis-
trict D The question then arose as to whether, pursuant to Article
XVI, Section 33 of the Constitution of Texas, the pay of the Pro- ~,
fessor and Lecturer at the University of Texas would be forfeited
upon their servfng as trustees of the Independent school district.
This resulted in the Professor and the Lecturer resigning from and
refusing to qualify for the office to which they had been elected. ~‘~
The Board of Trustees thereupon appointed the wffe of the Profes-
sor and the wife of the Lecturer to ffll the vacancies on the
Board of Trustees of the independent school district created by
. .
Honorable J. W. Edgar, page 2 (WW-1364)
the resignation and/or failure t,o qualify of the Professor and
the Lecturer Bo The Professor is an officerof ‘theRetired Reserve
of the United States Navy and the Lecturer is a member of the
United States Army Reserve.
Section 33 of Article XVI of the Constitution of Texas
provides that:
“The Accounting Officers of this State shall
neither draw nor pay a warrant upon the Treasury
in favor of any person, for salary or compensation
as agent, officer or appointee, who holds at the
same time any other office or position of honor,
trust or profit, under this State or the United
States, except as prescribed in this Constitution.
Provided, that this restriction as to the drawing
and paying of warrants upon, the Treasury shall not
apply to officers of,the National Guard of Texas,
the National Guard Reserve, the Officers Reserve
Corps of the United States nor to enlisted men of
the National Guard, the’ Nakonal Guard Reserve the
Organized Reserve of the United States, nor to’re-
tired officers of the United States Army, Navy, and
Marine Corps, and retired warrant officers and re-
tired enlisted men of the United States Army, Navy;
and Marine Corps 0t8
In the case of 140 Texo 271 167
S.W.2d 147 ‘(1943) 9 the Su s had before it for
consideration the provisions of Section 33 of Article XVI of the
Constitution of Texas as well as certain other provisions of the
Constitution and in its opinion the Court held that:
“We think the people, by the adoptfon’of the
amendments intended to avoid the inhibitions con-
tained in the then existing Constitution w%th re-
spect to dual office holding. This conclusion is
fnescapable, in our Judgment, when we consider the
reasons for submftting Sections 33 and k0 to the
people for their approval, In selecting the classes
to be favored by the amendments, the National Guard,
the National Guard Reserve, and the Officers Reserve
Corps’of the United States among others, were in-
cluded. The inclusion of ?hese classes encouraged
the citizens of this State to render a patr%otfc
service to the State and the Nation by qualifying
themselves for military service, 0 ., Thus it ap-
pears that,‘by the adoption of these amendments,
the people consfdered it to be in the interest of
Honorable J. W. Edgar, page 3 (WC1364)
the public to favor the classes named, by allowing
them at the same time to hold civil offices under
the State. The people no doubt considered, when
they adopted these amendments that the publfc”s
welfare would be better served by allowing these
classes to serve the State and Nation in the mili-
tary units named, while at the same time rendering
service to the State as civil officers.w
It is apparent that the intent of the last sentence
of Section 33 of Article XVI of the Constitution of Texas was
merely to allow individuals who are members of the military
units named in Section 33 of Article XVI to also be able to
act as an agent, officer or appointee of the State without for-
fY;Yking the corn ensation that this office or position may pro-
We are o P the opinion, however that mere membership in
one if the military units designated in Section 33 of Article
XVI would not serve as a complete removal of all the restric-
tions imposed by Section 33 of Article XVI.
While Section 33 of Article XVI would allow an indi-
vidual to serve as a member of one of the designated military
units and also draw a salary or compensation from the State,
this provision of the Constitution of Texas would not allow an
individual to serve as a member of one of the designated mlli-
tary units and also draw a salary or compensation from the State,
and at tha same time hold another office or position of honor,
trust or profit under the State or the United States other than
being a member of one of the desfgnatad military ties.
In tine instant case there would be no conflict with
Section 33 of Article XVI for the Professor or Lecturer to re-
ceive pay from the State for their services rendered at the
kfversity of Texas and at the same time be a member of one of
the military units designated in Section 33 of Article XVI.
However, membership in one of the deslbgnated military units
would not serve as a basis for allowing a Professor or Lecturer
who is rece%ving compensation from the State for services ren-
dered at the University of Texas to at the same time hold an-
other position or office of honor and trust other than as a
member of one of the designated military units.
The last sentence of Section 33 of Article XVI does
not exempt certain fndfviduals from the provisions of Section
33 of Article XVI; %t merely provides that those individuals
serving in a position of honor, trust or profit as a member of
the designated military units will be allowed to serve in such
capacity without the forfeiture of compensation from the State
if he happens to be an agent, officer, or appointee of the
State.
Honorable J, W. Edgar, page 4 (WW-1364)
As the Professor and Lecturer in the instant case are
presently receiving a salary or compensation from the State,
the question is raised as to whether a member of the ‘Boal’d of
Trustees of an independent school district is holding an office
nor position of h onor or trust within the meaning of Section 33
of Article XVI.
In Attorney General’s Opinion No. O-2701 (1940) this
office held that:
“A trustee of an inde endent school dlstrlet is
a civil officer of the Sta t e. See Thomas et al. vs.
Abernathy County Line Independent School &strict,
et al, 278 S.W. 213 (1926).
“There can be no doubt that a ‘trustee of an in-
dependent school district holds an office of honor
and trust within the meaning of Article 16, Section
33, of our State Constitution. See Opinion No. O-
1422 of this department.”
Consequently, if a Professor or Lecturer at the Unlver-
sity of Texas serves as a member ofthe Board of Trustees of an
independent school district, it would result, in effect, in a for-
feiture of any compensation payable to the Professor or Lecturer
from the State of Texas as Section 33 of Article XVI prohibits the
drawing or paying of warrants from the State Treasury in favor of
any person for salary or compensation as an agent, officer or ap-
pointee of the State, when such person at the same time holds an-
other position or office of honor or trust.
The next question raised in your letter deals with
whether the individuals, who have been appointed by the Board of
Trustees to fill the vacancies left by the resignation of the two
newly elected members of the Board of Trustees, will serve only
until the next regular election.
We are uncertain as to which statutory enactment gov-
erning the activities of independent school districts that this
particular district is operating under but in such statutory
provisions as Articles 277ka 2775~ 211776-l 2777d-2 2777f
2777, 2777a 2777b, 2777d aid 2783: Vernon!s Civil Statute;
the Legislaiure has specihied that a& vacancies filled by th:
Board of Trustees shall be for the unexpired term. However, Ar-
ticle 27’&b, Vernonus Civil Statutes, pertaining to districts of
‘lOOzOO scholastics or more and wherein there is situated a city
having a population of 575 000 or more inhabitants prov%des
that vacancies shall be ffiled by an appointee until the next
regular election.
Honorable J. W, Edgar, page 5 mw-1364)
Consequently, we are of the opinion that unless the
independent school district. in the instant case is operating
pursuant to Article 2774b, the’ individuals appointed by the
Board of ‘JYustees to fill the vacancies upon the Board will
serve for ‘the unexpired term of the members whose vacancy is
being filled,
In your letter you further requested an opinion from
this office upon the following questions8
qqao Does the Board of Trustees of an inde-
pendent school distriot have authority legally to
grant or execute a long-term (50 years) lease to
a fire prevention district for the erection and
use of a fire hall on its school property?
‘lb, If the answer is in the affirmative,
must the School Board first make a finding that
such action will not endanger the health safety
or welfare of its scholastics and that &he site
or area leased therefor is no 4 needed for school
distric% purposes; in short, that the ground is
surplus property?”
The title to property of an Independent school district
is by law vested in the Board of Trustees of such district, and
the management and control of such property is given to the Board
of Trustees of such d9,strict, Bustees of Indeuendent Sch 01 Dis-
12; Tex,
ership,
management and control of such property, the Board of Trustees
sta;nds~ in the position of a trustee, &yuQ Citv of Dallas, 120
Tex. 351, 40 S.W.2d 20 (1931).
In connec%ion with the Board of Trustees’ administration
of such properties, our courts have recognized that the leasing of
school property fcr non-school purposes may be harmony with the
in
purposes of the trust and may be consistent with the faithful per-
formance of the trust provi.ded the lease is made under conditions
which preven%‘i~.ts ‘interfering with the conduct of the school0
In the case of
hardt, 159 S,W, 1033 (Ci,v
property was leased to a n
purpose of allowi,ng the club to use such property as a site for
baseball games D In retrasn for %he privilege of using the property
the club erected a fence enclosing the entire school grounds, and
such fence was to become the proper%y of the school district, In
holding that the Board of Trustees was au%horized to enter into
this lease, tn,e Cow% held that:
. .
Honorable J. W. Edgar, page 6 (WW-1364)
“The contract under consideration ermits the
use of the school grounds only during t ii e period of
time”intervening between the close of the school in
the spring and the beginning of the term in the fol-
lowlng fall, and will result in quite a financial
advantage to the school district.’ It may be true
that the use to which the grounds will be put under
the contract is not actually necessary for the pro-
motion of the school, yet, as it will not impede or
interfere with its progress, or tend to injure the
school property, and will be used at a time when the
grounds are not needed and will not be used by the
school, such use is not so inconsistent with the
purposes to which the property has been dedicated or
set apart as renders the contract permitting it il-
legal or unauthorized. + . e I1
See also Attorney General’s Opinion No, O-5354 (1943).
As the Board of Trustees in the instant case is aware
of the advantages to be gained by having fire protection and
first aid facilities located In close proximity to the school
facilities of the district, and in ;i.;w 0: ;he language of the
Court in Rovse Indecendent School D rlc ReQ&.&& vi%!a?tk
we are of the opinion that the Board of Trustees could lease
certain property of the independent school district to a fire
protection district, for erection thereon of certain fire pro-
tection facilities, so long as such action does not impede or
interfere with the operation of the school,
As to the question of whether the Board of Trustees
must first make a finding that such action will not endanger
the health, safety or welfare of the students and that the area
leased is not needed for school district purposes, we are of
the opinion that these are matters which the Board of Trustees
must necessarily consider in arriving at a decision as to whether
or not the lease will be made. It would seem to be fundamental
that the Board of Trustees would ‘not consider executing a lease
until such time as these considerations had been favorably met.
Whether these considerations have been favorably met would depend
upon the facts in each particular case and not necessarily upon a
statement to this effect in the minutes of a meeting of the Board
of Trustees 0
Honorable J. W0 Edgar, page 7 (W!&13&)
Section 33 of Article XVI of the Constitution
of Texas would prohibit a Professor or Lecturer at
the University of Texas from receiving compensation
from the State for such services if at the same time
such Professor or Lecturer is holding the office or
position as a member of the Board of Trustees of an
independent school district.
Individuals appointed by the Board of Trustees
of an independent school district to fill vacancies
upon the Board of Trustees serve for the remainder
of the unexpired term of the vacancy which is being
filled unless such independent school district oper-
ates pursuant to the provisions of Article 277&b, in
which event the appointee serves only until the next
regular election0
The Board of Trustees of the independent school
district in the instant case and under the facts
stated would have the authority to lease certain
property to a fire prevention district so long as
such action does not impede or interfere with the
operation of the school,
Yours very truly,
WILL WILSON
Attorney General of Texas
PBswb Assistant
APPMVED:
OPINIONCOMWITTEE
W. V. Geppert Chairman
Morgan Nesbite
Marvin Sentell
Grady Chandler
REVIEWED
FOR TBE ATTCRNEYGEBEBAL
BY: Leonard Passmore