DocketNumber: V-828
Judges: Price Daniel
Filed Date: 7/2/1949
Status: Precedential
Modified Date: 2/18/2017
lion. Carl Ylller Criminal District Attornay Roekuall, Taxes 0plnlon NO. f-828 Ror Lagality of one per8oa holding tha 0tri0et3or J&atlas of the Paaoe and County Comwdsslonar at the aamb timer Dear Sir: We rtter to your letter in which you ask it the same peraon may hold the ofrloes or Juatloe of the Peaoe and County Commlssionor of a county at the sama time and note your suggeatlon that a negatlre answer may be in conflict ,wlth Seotlon ‘40 of Artlole XVI of the Constitution of Texas, which ,reads in part: “Ho person shail bald or exercise at the same time. more than oae civil office or *oltm+ ixcdpt that or~.Jw&e or tha Peace, Coanty‘-Commlssloner, Notary Public., Postmaster, etq~.” (Underscdrihg ‘added throughout) The prahlbltloa Of Section 40 of lrrtlolr XVI against the holdlng of more than ohe Offlee of emolument by the same person at the same time does not apply to the offices of County Commlsaloner or Tustloa of the Peace ror the reasoa that eald offlobr are axpressly exoaptad rrom its prorlsfons. However, it is a rundamaatal rule or law that the same person may not at the aama tima hold two or- rices, the duties of ,whlch are inoompatlbla: This rule apDlles to all offloes fncludlnr. those named in see- The’kbore oasa Of TIioPLdsP. Line Inddpendent ‘Schbol Dlitrlct involred the same persons to hold at the rtiaib time Hon. Carl Miller - Page 2 (V-828) or alderman and sohool trusts.. The Court doaldod that the question as to whether Seation 40 of Artlole XVI ap- plies to said offices la lmmaterlal beoause it held that the two offices are lnoompatlble and may not be held by the same person at the same time. It trustees Smith and Lindsey vacated their offices as school trustees whaa they qualified as aldermen, they could not be counted to mske a quorum of the school board. On the point the Court said: “In our oplnlon the orrices or sohool trustee and alderman are incompatible; ror under our system there are in the alty ooun- cl1 or board of aldermen various directory or supervisory powers exertable in respeot to school property located within the city or town and in respect to the duties of school trustee perrormable wlthln its llm- its--e.g., there might well arise a conrllct of discretion or duty in respeot to health, quarantine, sanitary, and fire prevention regulations O See articles 1015, 1067, 1071, R.S. 1925. If the same person could be a school trustee and a member of the city ooun- cil or board of aldermen at the same time, school policies, in many important respects, would be subject to direction of the council or aldermen instead of to that of the trua- tees. “The result of thls lncompatlblllty is that Smith and Lindsey vacated the offices oi.sohool trustees when they quallrled as aldermen. State v. Brlnkerhorr, 06 Tex. 45
,17 S.W. 109
. Henoe the quorum neoeaaary to enable the board of trustees to order an election or to canvass the returns and de- clare the result of an election did not ex- ist, if the fact allegations be true, and, lp such event, the issuance and sale of the bonds and levy of the tax therefor has no lan- rui *arrant. Those allegations, as presented, are duly verified and not ohallenged, and we believe the plalntlffa in error are entitled to the temporary injunctive relief prayed. “In view oi whet has been said, the question whether the office or school trustee or that of alderman is an orrlce or ‘amolu- me&’ within the terms of aeotlon 40, art. 16, , . Hon. Carl Miller - Pago 3 (P-828) or the Constitution, is immaterial, and In ra- spect to that question we do not exprass or &ply a conclusion.* aOnde ‘of the m&t important testb -is’ to whet&r ofrlces are inoompatlble is found in the principle that the lnoompatlbllity Is rea- ognlzed whenever one la sabordlnate to the other in some of its important and prlnclpal duties, or la subject to supervision by the other, or whore a contrarlty and antagonism would result in the attempt by one person to discharge the duties of both. Under this principle two oftlc,ea are incompatible where the lnoumbent of one has the .power to ramove the incumbent of the other, though the contln- gency on which the power ‘may be tiferclsed Is remote, and it also exists *here the incum- bent ot one office has the power of appofnt- ment as to the other oiflce, or to audit the accounts of another, or tO exercise a auper- vlslon over another.” Sedtlon 10 of Artlole V of the Constitution of Texas reads in part: “Each organized county in this State non or hereafter existing shall be divided ~-.from time to time, idr the convenla~&.&.%h&paople, ‘into precincts e not less than four and not more than eight. The present county Gourts shall make the first dlvlslaa;-’ Sa@~aaquent divisiona shall be made by the d0mlQf di ham’ Court, pro- vldbd ior by this Constlta 4~16%* In each suoh, precinct-~ Were -sbsll~ ba ‘elebt.Oill at eaoh blen- nlal election one justloe oi the peace. O O The Oounty Commissioners so ahosen, with tha uoonty judge, as presiding offloer,~ shall compose tha Coontp Commiaaloners~ Court ,’.wEiah 6ksXl axbr- olse such powers and jurlsdle$ion over all county business as is conferred by this Consti- tution and the laws of the State as msagbe here- arter preacrlbed.R In Attorney Generalls Opinion Ho. Y-790 it was hdld. that the Commissioners* Court may abolish old justice preolncta at any time, thereby oreatisg vaoan- cles and fill such vaoancles by appointment. Ue en- close a copy of this opinion. Hon. Carl Miller - Page 4 (V-86S) It is the duty of the Qoml88io~ox%' OorrC to detealne whether the J'Plltloa8 of tlm Pow8 r%Ul be paid oa a tea or ralary krir lnQ to preeb?ilM their a~panratlon~wlthln the rtdtatory lWt8.. Ilrrtlrlw 3883,~3891, 3913@., V.C..S.). tortior or the Pm are required by law to make full report8 to tha carirrion- em' Courts at eaoh of it8 regular~te~nr. w-tiolw 1617-1618 V.C.S., Artlo'le 1OSZ V.C.O.P.)o Thor 8ame queatloa HI beioro Attornay banral Looney In 1913. In dlsousrihg tho ratter In an apiaion by Hon. C. A. Sreetoa it is said, “Under the law, a juatioe of the pea08 is oharged with the duty of -king a sworn repott or all moners oollected by hla for the.um of the county, to the coaalsslonerw ooart of tha oountp, which report shall show the amount ot moneys collected and the dlsposltlon mad8 of oarno, and said report shall be carefully exu- ined by the’ commlssloners Court, and ii found oorrect , by order of the court, the clerk shall. enter the same on the financial ledger of the oounty, and if round to be incorrect, the court shall summons said justice of the peace before them and have him correct the same. Now, if it is lawful and permissible for one man to hold both positions at the same time, &very aember of the court could hold both positions at the same time, and in such 8vrnt we would hare the entire oommlssloners oourt summoning themsolvo8 to appear before themselves to make the naaeararf oorreotlona in their reports. rr the ju8ti00 0r the peaoe should id11 tci correct the report, or ii, upon examination it should bo saoertal5a4 that said justice of the peace was a defaulter, it ronld then beoome the dutfof the oomels8lon- ers court,to pass an order directlag that suit be brought agalnst suoh orfiabr and hi8 oftlclal bondsmen. In saoh eveat, WS uoorld hare this ait- uatlon: The entire oommlarloner8 oourt ritting in judgment upon their own OfflOlal work performed in a dlrrerent orrioial oapaoltr. Ii thay wara inclined to be dlahonest, or ii they 8hould eon- oelre the idea of misappropriating county fund8 while serving in the oapacltf of just100 of tha peace, if permitted at tb sme tlme~t.0 aot in the oa salty 0r oou5ty camia*lo5cr, and pa88 up- on the Pr own report*, who would d8toot tha dofal- oation? Hon. Carl Miller - Page 5 (V-828) “Again, the law requires the commlssloners court to fill all vacancies In the office of justlae of the peace. It might so happen that a vaoanoy might oocur In the office oi justios of the peaoo in tho precinct of eaoh county commIssIoner, and If permitted to hold both offices at the same tine, the entire corisslon- ers court might vote for themselves to fill saeh va- oancles . If this should be done, they would pass upon and approve their own offiaial bonds, booaosa the law requires the commissioners court to approra the bond of a justice of the peaoe. They aoald, rile and approve worthless bonds from which nothlng could be recovered. “The law furthermore enjoins the duty apon the commissioners court to ascertain from the report of the justice of the peace whether all fines and judg- ments rendered by him have been collected, and If It appears that any such fines and judgments, imposed by such officer, have not been paid and satisrled then the commissioners court shall charge suoh un- paid fines and judgments against the justice of the peace, and he and his bondsmen would be liable thtre- for, unless he could show, to the satisfaction of the commissioners court, that he had used due dili- gence to collect same. Here again we would have a county commissioner sitting in judgment upon his of- ficial acts performed in another and different of- ficial capacity. “Again, the law makes it the duty of the com- missioners court to require a new bond of the jus- tice of the peace if, at any time, they should be- come satisfied that his bond, from any cause was insurricient . And in such case we would have a county commissioner passing upon the surflcienay and solvency of his own bond as justice of the peaoe. “A number of other instances might be cited to show the incompatibility of the duties or these two positions, but we think the above are sufffaient. *After careful consideration of this subject, we here come to the conclusion that the duties of these positions are Incompatible; and because of this fact, and because it would be against good, sound public policy, in the opinion of this Depert- ment , a county comprissioner oan not, at the same time, lawfully hold the position of justice of the peace.” Hon. Carl Miller - Page 6 (V-828) Opinion of Jan. 24, 1913, 1412-14, p0 727. ThI8 epfa- Ion was followed in 1940 by Attorney General Gerald C. Mann, O-2640. In view of .the foregoing we are of the opinion that the same person may not hold the office of County Commissioner and Justice or the Peace at the same time because the duties of said offioer# are In- compatible. The same person may not hold the oiflces of County Commissioner and Justice oi the Pesoe at.the same time because the duties of said of- fices are Incompatible, Opinions of Attorney General of Jan. 24, 1913 (Opinions 1912-14,p0727) and o-2640, Thomas v. Abernathy County Line I.S.D., 290 S.Wo 152 (Comm. App. 1927)o Yours very truly ATTORNJU GENERALOF TEXAS W. T. Williams Assistant FIRST ASSISTANT ATTCBJEYGFXEAL WTW:wb:jrb Encl.