Untitled Texas Attorney General Opinion ( 1942 )

Honorable Tom L. Hartley
Criminal District Attorney
Edlnburg, Texas
Opinion No. O-4663
Re: Whether or not a person must
continue to reside in an ln-
dependent school district to
serve legally as tar.assessor-
collector as well as secretary
of said district.
Dear Sir:
We have received and considered your request
for an opinion from this department. We quote from your re-
quest:
,"This office will appreciate an
opinion from your Department at your earliest
convenience upon the following question, to-
wit:
;"Can a person who has been appointed
as Tax Assessor & Collector for .an Independent
School District, with pay; and has also been
,appointedto serve as Secretary for the same
Independent School District, without pay; take
up residence outside of said Independent School
District for which he is serving and still con-
tinue to serve legally, both as Tax Assessor &
Collector and as Secretary to the said Inde-
pendent School District, both of these appoint-
ments having been made by the said Independent
School Dlstrlct?"
Article 2779 of Vernon's Civil Statutes of
Texas provides:
"Said trustees shall meet within twenty
days after the election, or as soon thereafter
as possible, for the purpose of organizing. A
majority of said board shall constitute a quorum
Honorable Tom L. Hartley, Page 2
to do business. They shall choose from their
number a president, and they shall choose a
secretary, a treasurer, assessor and collector
of taxes, and other necessary officers and
committees."
Article 2780 of Vernon's Civil Statutes of Texas
provides:
"Said trustees shall adopt such rules,
regulations and by-laws as they may deem proper;
and the public free schools of such independent
district shall be under their control; and they
shall have the exclusive power to manage and
govern said schools, and all rights and titles
to property for school purposes heretofore vested
in the mayor, city councils or school trustees
by articles 3995, 4013 and 4032, Revised Statutes
of 1895, or other statutes, general and special,
except such cities as are exempted by this title,
shall be vested in said board of trustees and
their successors in office; Andysuccessors in
office; and their claims shall apply to any
action or suit which may arise to which said
board is a party."
Article 2791 of Vernon's Civil Statutes of Texas
provides for the official duties to be performed by the dis-
trict tax assessor and collector, fixes his compensation
and likewise provides for an official bond for said officer.
Article XVI, Section 14 of the Texas Constitution
provides:
"All civil officers shall reside within'
the State; and all district or county officers
within their districts or counties, and shall
keep their offices at such places as may be
required by law; and failure to comply with this
condition shall vacate the office so held."
Article VII, Section 3 of the Texas Constitution
authorizes the Legislature to create school districts by
general laws.
"Office" embraces the ideas of tenure, duration,
emolument and duties. Among the criteria for determining
whether an employment Is a public office are the following:
Honorable .TomL. Hartley, page 3
the delegation of a portion of the sovereign functions of
the government; the requirement of an official oath; that
the powers intrusted are conferred by law and not by con-
tract; and the fixing of the duration or term of office.
It is the duty pertaining to the office and the nature of
that duty, and not the extent of authority which make the
incumbent an officer; and one is none the less an officer
because his authority Is confined to narrow limits. 34 Tex.
Jur. Sec. 2, p. 323.
In the case of Pruitt v.,Clen Rose Independent
School District No. 1, (Comm. App,) 84 S,W.(2) 1004, it was
held that the office of tax collector for an independent
school district was one of emolument within the scope of
Article 16, Sec. 40 of the Texas Constitution.
In the case of Hodgkins, et al v. Sansom, et al,
(Clv.App.) 135 S.W. (2) 759, error dismissed correct judg-
ment,, the court held that Article 16, Sec. 14 of the Texas
Constitution did not apply to a resident citizen of an in-
dependent school district, duly elected as trustee, who,
shortly after his election, moved Into a rented house,
after his own home, located in the district, had burned,
without knowing that the new rented home was just a short
distance outside of the boundaries of the school district
and where he intended to rebuild on his old home-site as
soon as he became financially able. Although the Court
did not expressly say that a trustee of an independent
school district was within the scope of Article 16, Sec.14
of the Texas Constitution, we believe, from what the Court
did say, that under proper facts it would have so held.
From a consideration of the foregoing authorities
and in view of the duties imposed upon the tax assessor and
collector by the statutes referred to above, we think that it
is clear that a person appointed to that office is such an
officer as comes within the scope of Article XVI, Section 14
of the Texas Constitution. Said Constitutional provision has
been said to be self-enacting and that an office Is vacated
by non-compliance with its provisions. Ehlinger v. Rankin,
9 C.A. 424, 29 S.W. 240.
You are advised in answer'to your question that
the tax assessor and collector of taxes of an independent
school district must reside within the district and that a
Honorable Tom L. Hartley, page 4
failure to comply with that condition shall constitute a
vacation of the office.
We trust that in this manner we have fully
answered your inquiry.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By Harold McCracken
Assistant
HMc:nwzbt
APPROVED July 17, 1942
Gerald C. Mann
Attorney General of Texas
APPROVED OPINION COMMITTEE
By BjVB,Chairman