Untitled Texas Attorney General Opinion ( 1951 )

NE
October 17, 1951
Hon. Murray H. Nance, Jr. Opinion No. V-1322
County Attorney
Grayson County Re: Eligibility of a member of the
Sherman, Texas Board of Equalization of an
independent school district to
serve on the County Board of
Dear Sir: School Trustees.
In your request for an opinion you state that a person was
elected as a member of the Grayson County School Board in April,
1951, and qualified at the first meeting in May following the elec-
tion. Thereafter, he accepted appointment by the Sherman Inde-
pendent School District to its Board of Equalization, qualified and
served as a member of that board, receiving as compensation for
such services the sum of $250.00. You then ask the following
question:
Does a member of a county school board who ac-
cepts, qualifies, serves, and receives compensation
for service as a member of an equalization board of
an independent school district vacate his office as a
member of the county school board?
Section 40 of Article XVI of the Constitution of Texas pro-
vides:
“No person shall hold or exercise, at the same
time, more than one Civil Office of emolument, ex-
cept . . . [exceptions not pertinent herein] ,”
Article 2676, V.C.S., provides in part as follows:
“The general management and control of the pub-
lic free schools and high schools of each county, un-
less otherwise provided by law shall be vested in five
(5) county school trustees elected from the county,
. . . who shall hold office for a term of two years. The
time for such election shall be the first Saturday in
April of each year; . . . All vacancies shall be filled
by the remaining trustees. . . .”
Article 2687. V.C.S., provides further:
Hon. Murray H. Nance, Jr., page 2 (V-1322)
“The County School Trustees shall hold meet-
ings once each quarter, on the first Monday in Au-
gust, February, May and November, or as soon
thereafter as practicable, and at other times when
called . . . Each Trustee shall be paid Six Dollars
($6) per day, but not to exceed Seventy-two Dol-
lars ($72) in any one year, for the time spent in
attending such meetings . . .*
Clearly, under these statutes, a county school trustee
holds a civil office of emolument. Att’y Gen. Ops. O-7323 (1946),
O-4628 (1942); Att’y Gen. Ltr. Ops. Vol. 241, p. 539 (1921).
Under Articles 2791 and 2792, V.C.C., independent school
districts which have their taxes assessed by their own special tax
assessor are required to provide a board of equaliiation before
which the citizen is entitled to annear and be heard uoon anv as-
sessment of his property. MilleLrav. Vance, 107 Tex.b85, 180 S.W.
739 (1915); St. Louis Southwestern Ry. V. Naples Ind. School Dist.,
30 S.W.2d 703 (Tex. Civ. App. 1930) ; Att’y Gen. Op. O-3734 (1940.
Those statutes‘provide for-the appointment of a board of equali&-
tion by the board of trustees of the independent school district.
They further provide that the board of trustees shall have the same
power with reference to the assessment and collection of taxes for
free school purposes that are conferred by law upon the assessor
and collector of taxes in and for any incorporated city, town, or
village. Thus, we are referred to Article 1048 providing for the ap-
pointment of a board of equalization, to Article 1056 which provides
for compensation of the board, and to Article 1060a, which makes
available all the provisions of Title 122, R.C.S. 1925, in so far as
same may be necessary to all school districts. Republic Ins. Co.
v. Highland Fark Ind. School Dist., 129 Tex. 55, 102 S.W.Zd 184
TI9371. Article
I I
7215, V.C.S.. _
prescribes the oath to be taken by
members of the board of equalization.
The definition of public office as used in Section 40 of Ar-
ticle XVI of the Constitution of Texas, defined in part by the Su-
preme Court in Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120
(1902)s is summarized in 34 Tex. Jur. 322, Public Officers, Sec.
2, s.5 follows:
“It is said to be a right to exercise a public
function or employment and take the fees or emol-
uments belonging to it; ‘a public station or employ-
ment conferred by the appointment of government’;
and ‘the,right, authority and duty created and con-
ferred by law, by which, for a given period, either
fixed by Jaw, or enduring at the pleasure of the cre-
ating payer, an individual is invested with some por-
sovereign functions of the government, to
Hon. Murray H. Nance, Jr., page 3 (v-1322)
be exercised by him for the benefit of the public.’
The individual so invested is a public officer.”
A similar statement of this rule may be found in Knox v.
Johnson, 141 S. ,Ir.2d 698 (Tex. Civ. App. 1940, error ref.); m-
son v. tillis County, 84 S.W.2d 1097 (Tex. Civ. App. 1905); m.R.
-595;ic Offices and Officers (1889) 5.
Applying that test here, it is our opinion that a member of
a board of equalization of an independent school district (the mem-
bers thereof receiving compensation for service thereon) holds, as
such, an office of emolument within the meaning of Section 40 of
Article XVI of the Constitution of Texas. Att’y Gen. Ltr. Ops. Vol.
382, p. 905 (1938); Att’y Gen. Op. O-3175 (1941). See Nalle v. City
of Austin, 56 S. N. 954 (Tex. Civ. App. 1900, error ref.); Zachary
v. City of Uvalde, 42 S.W.2d 417 (Tex. Comm. App. 1931).
In the case of Pruitt v. Glen Rose Ind. School Disk, 126
Tex. 45, 84 S.W.2d 10041935). the court cites the foIlowing
rule summarized in 34 Tex. Jur. 354, Public Officers, Section 19:
“Having elected to accept and qualify for the sec-
ond office, ipso facto and as a matter of law. he va-
cates the first office. This is true where both of-
fices are places of emolument, . . . In such circum-
stances the constitutional provision that all officers
shall continue to perform the duties of their offices
until a successor has been qualified does not apply.*
Accordingly, by virtue of thq’provisions of Section 40 of
Article XVI of the Constitution, we agree with you that one person
may not at the same time legally hold both the office of county
school trustee and the office of membership on the board of equal-
ization of an independent school district. Acceptance of and qual-
ification for the latter office operates to vacate the former.
SUMMARY
By virtue of the provisions of Section 40 of Ar-
ticle XVI of the Constitution of Texas, one person
may not at the same time legally hold both the of-
fice of county school trustee and the office of mem-
bership on the board of equalization of an independent
Hon. Murray H. Nance. Jr., page 4 (V-1322)
school district, and acceptance of and qualification
for the latter office operates to vacate the former.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
Jesse P. Luton. Jr.
Reviewing Assistant Chester E. Ollison
Assistant
Everett Hutchinson
Executive Assistant
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