Untitled Texas Attorney General Opinion ( 1947 )

R-515
E i&lTOkEY GENERAL
OF’ TEXAS
Bon, Lo A, Woodss State Superintendent
Dspartanant of Education
I
l
Awtfn, Terra
Att\Mtiafi: Ken, T, Y, Trimbls,
Ffrst Assistant Opinion Non V-242
Its: Artthorfty of
City AttornOf
to some ad
trustee of f*
dependent school
., .~
district not IUU.W
. fclpally oontrollebp
Dear Sir:
We refer to your letter of reosnt date acknowl-
'edged by the Attorney General on may 26, 1947, wherein
you request an opinion from this office on the follow-
ing questfonf
May the City Attorney serve at the same .'
time as trustee of an independent sahool dfs-
trfct, wh%ah dfstrfot is not au.nloipully con-
tr6llsPl
Artiels XVIp Seotlon 40, Constitution of Texaas
raade fsr parts
*Ro psraon shall hold or exerctleee at the
same time, more than one civil offfoe of emo$a~
,. almtd * o*
Dual office holding is expressly forbidden by
Sectfon 40, Atitfale XVX, of the Texas Constitution where
both offfoes are ofvil offfoes of emolument, Dual offPoe
holdi@ is forbidden to an extent at least by Section 33
of Article XVI wherein the acaountfng officers of the State
are forbid&I to issue of pay a warrant upon the Treasur-
er for the payment of salary or emlpensat fen to a cfvf 1
'~@ffPcer, who at the same time holds another offfee of
&t&a&r,trust, or profit under the United States or the
State of Texasa
.
Hon. L, A, Wooda 0 Page 2
The oonstftutfonN pmhfbftfon against the
holdfng of more than one offfee of emolument (Art. XVI,
Seq, 4C) fs inapplicable to the questfon under consfd-
eratfon for the-reason that sfnoe a trustee of an fnde-
pendent school dfstrfet serves wfthornt oompensatfon, his
‘9s not en office of emolument, State VP Martin, 51 SOW,
2dp 815; Attorney General Opinion O-3308, And sines nei-
ther a City Attorney nor a trustee of an independent
sahool dfstrfat are offices to be paid out of the State
Treasury, Seotfon 33 of Article XVI fs not violated un;
der the facts submlttedd
.
Hosver, ft is also a fundamental rule of law
that one person may not hold at one time t%o offices, the
duties of which are incompatible, and this princfple’ap-
plb# whether or not the office is named in the exoep-
tfona contained fn Article XPPp Section 40, Blenoourt
t. Parker, 29 Tex, 558; State v. BrPnkerhoff, 66 Tex. 45;
T-8 t0 Abernathy County Line Independent School Dfs-
3 trfot, 290 SOW0 152; Pnnett VP Olep Rose Independent
Sehool Dfstrfot, 84 SoW1. 26 1004.
Thfe prfnofple of law, fnoompatfbflfty of offf-
oeao fe expreeaed clearly fn 22 R,C,L, 4P4$ par, 56; we
uote fma Knwkles v. Board of Education ,of Bell County
7fyo) 114 sow, 2d 511, p* 514, ae foPlowsn
*On8 of the most important testa as to
whether offfo-es are fnoompatfble is found Pn
the prfaefple that the fneompatfbflfty fs
reaognfeeff whenever one fa subordinate to the
other 4n aome of its fmportant and pr4ncfpl.e
duties, or fs aubjeat to 8upePrfsfan by the:
other, or where a contrariety and antagonism’
would result in the attempt by one person to
diseharg8 the duties of both, Under thfs
prfnofple two offfoes are incompatible where
the fnewmbeotof me has the power to remove
the frmmbent of the others though the aon-
tl~anep on which the power may be exercsfsed
ia . r c r o tolBd it also exists where the ino
ownbent 08 OIW offfrre haa the power of appofnt-
aunt as to the other office, D 0 0 or to audit
the loao@satb of another, or to exercise a super-
rlsfon Over another.n
Wo heoe aonsfdersdthe statutea relative to the
rmpeetfva fntWnbent. upon a City Attorney and a
du%fer
trwto8 o? an fndependent senhool dfatriet which district I
.
Hon. L. A, Woods - Page 3
is not municipally controlled but is governed exclusively
by the laws appertaining to independent school districts..
in general S snd we aan oonoeive of no sound basis upon
which it may be said tlat the offices are incompatible.
We have been unsble to find any statute providing that
either offfoe~ is accountable to, under the dominion of s
or subordinate to ths othar, or which provides that of-
ther office has a right to interfere with the other in
the performance of any official duty* War have we been
apprised of any reason wh the duties of a City Attorney
would be inconsistent or I n conflict with the duties of
a trustee of an independent school district which is not
municipally controlled,
In Opinion 0-3906-A, this Department advised
that it is the function of the county or district attor-
ney to advise the school officials of independent school. !
district8 oonasrnfng the school laws and to handle their ”
litigations in contested eleotioss, and that therefore
the offioes of county attorney and trustee of an fndepen-
dent school district are incompatible. But this reason-
ing would not apply to a Cft y Attorney. !
It is our opinion, therefore, that the two off-
faes in question are not incompatible s and that your sub-
mitted auestion should be, and is, answered in ths afffr-
matfve, -
0~s person *jr hold .at the same time both
.~ t~he offfoes ‘of City Attorney and trustee of an
fndependent sohool dfstrict whfah is not munfcf-
pally controlled,, the said offfoes being not in-
compatible d
Very truly yours
APPBPVEDJuIa 10, 1947 AlTOFUUY GWWWRAL
OF TWXAS
2i?LdiFa .,ur*
ATThEY GXRltEUU Chester ,E. Ollfaon
Asrfstaat
.