Untitled Texas Attorney General Opinion ( 1942 )

Honorable K. H. Dal-1Y Opinion No. Q-4957
County Attorney Re: County Commissioner may
Hutchinson County also serve as bus driver
Borger, Texas for a common 'schooldis-
trict.
Dear Sir:
Your request for o,pinionas to whether a county
commissioner would vacate his office by serving a8 a bus
driver for a school district not an independent one has been
received and carefully considered by 'thisdepartment. We
have been informed by the State Department of Education that
your county has no rural high school distrlcta and we.ass,ume
that you are referring to a common school district of the
county.
Article 16, Section 40, of our State Constitution,
reads, in part, as follows:
"No peraon shall hold or exercise, at the same
time, more than ,one civil office of emolument, ex-
cept that of Justice of the,PeaceA County Commis-
sioner, Notary Public and . s . 0
In the case of Gaal v. Townsend, 14 S.W. 365, cit-
ed by you in yo'urletter, Judge Galnea seems to lay down the
original interpretation of the above quoted constitutional
provision and used the following language:
"Any of the offices named in the exception may
be held with any other office, whether named in the
exception or not."
In spite of the express exemption enumerated in
the above constitutional provision, and in spite of Judge
Gaines' original interpretation of the provision in the case
Honorable K. H. Dally, Page 2 (o-4957)
of Gaal v. Townsend, supra, the co,urtaof Texas have imposed
an additional requirement to permit a person to hold two of-
fices, i.e., that the two offices must not be incompatible.
See the following authorities:
Blencourt v. Parker, 27 Tex, 558;
State v. Brlnkerhoff, 66 Tex. 45;
Thomaa v. Abernathy Co,untyLine Independent
School District, 290 S.W. 152;
State V. Martin, 51 S.W. (2d) 815.
We think the case of Luera v. State, 63 S.W. (2d) 699, men-
tioned in your letter, when properly analyzed, can be harmon-
ized with the above cited case8 inasmuch as the question of
incompatibility was neither raised, involved nor considered
in the Luera ease. Ye enclose herewith a copy of Opinion No.
b-998 of this department (mentioned in your letter). We think
this opinion is correct and hereby re-affirm same.
Article 2687a, Vernon's Annotated Texas Civil Stat-
utes, reade as follows:
"The trustees of any school district, common
or independent, making provision for the transport-
ation of pupils to and from school, shall for such
purpose employ or contract with a responsible per-
fionor firm. No person ahall be employed to trans-
port puplla,who la not at least twenty-one years
of age and a competent driver of motor vehicles
and sound in body and mind. All motor vehicles op-
erated by school districts, directly or by con-
tract, in the transportatlan of pupils shall be
covered and so glassed or curtained at the sides
and rear aa to protect the puplla from the incle-
menciea of the weather, and shall at all times be
equipped with efficient lights and brakes. The
drlvers of all school transportation vehicles shall
be required to give bond for such amount aa the
Board of Trustees of the district may prescribe,
not leas than $2,000.00, payable to the district,
and conditioned upon the faithful and careful dls-
charge of their d,utiesfor the protection of the
pupils under their charge and faithful performance
of the contract with School Board; and they shall,
before crossing any railroad or interurban railway
tracti, bring their vehicles to a dead stop. Fall-
ure to stop before crossing such railway afi provided
Honorable K. H. Dally, Page 3 (o-4957)
herein shall forfeit the driver's contract and, in
case of accident to p,upilsor vehicles the bond
shall be forfeited and the amount and all right
thereunder shall be detertined by a court of com-
petent jurisdiction. Acta 1929, 41st Leg., 1st
C.S., pm 96, ch. 42, gl."
A public office is something different from a pub-
lic contract. 34 Tex. Jur., p0 324. A bus driver for a com-
mon school district is clearly not a public officer. We have
carefully examined the statutes and are unable to perceive
any incompatibility between the office of county commissioner
and the employment of a bus driver for a common echo01 dia-
trict.
It is therefore our opinion that a county commls-
sioner would not vacate hia office as commissioner by serv-
ing as a bus driver for a common school district.
Very truly yours
ATTORWEY GENERAL OF TEXAS
By /a/ Wm. J. Fanning
Wm. J. Fanning
Assistant
WFJ:mp:zt
Encl.
APPROVED ROV 13, 1942
/B/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved
Opinion
Cammlttee
By B.U.B
Chalrman