:a .- 

AUWI-IN ~.TEXAS 

November l?, 1949 

Hon. Carroll F. Sulllvant Opinion No. V-945. 

County Attorney 

Cooke County Re: The legality of the CounQalnesvllle, Texas ty Attorney serving as a 

trustee of the munlclpally controlled public 

Dear Sir: schools at Gainesville. 

We refer to your letter of recent date requesting an opinion of this department on the following question: 

May the County Attorney aepve at the 

same time as trustee of municlpallg 

owned schools? 

Dual office holding is expressly forbidden by 

Section 40, Article XVI of the Texas Constitution when 

both offices are civil offices of emolument. In Section 

33 of Article XVI the accounting officers of the State 

are forbidden to Issue or pay a warrant upon the Treasurer for the payment of salary or compensation to a civil officer, who at the same time holds another office of 

honor under the United States or the State of Texas. 

Since neither the County Attorney or a trustee of a municipally owned school district Is an office to be paid 

out of the State Treasury, Section 33 of Article XVI is 

not violated by the facts submitted. 

The constitutional prohibition against the 

holding of more than one office of emolument (Art. XVI, 

Sec. 40) is inapplicable to the question under conslderation for the reason that since a trustee of a municipally owned school district serves without compenaation, his is not an office of emolument. Acts 1909, 

Rd., Special Laws, p. 507. 

However, it is also a fundamental rule of law 

that one person may not hold at one time two offices, 
Hon. Carroll F. Sulllvant, page 2 (V-945) 

Knuckles v. Board of Education of Bell County (KY.) 114 

. . 11, 514; Attorney General Opinion Eo.'O-3199. 

We have considered the statutes relative to the 

respective duties Incumbent upon a County Attorney and a 

trustee OS a munloipallg controlled school district. We 

can conceive of no sound basis upon which it may be said 

that the oSSlc44 are incompatible. We have been unable 

to find any statute providing that either office 14 acoountable to, under the dominion oS, or subordinate to 

the other, or which provides that either office has a 

right to interfere vlth ths other in the performance of 

any offlclal duty. Nor have w4 been apprised of any roason why the dutioe of a County Attorney vould be Lnconsistent or In conilict with the tlutlee of a trustee of a 

municipally controlled school district. 

In the case of Bonner v. Bolster11 101,Tex. 

!22: 138 S.W. 571 (lgll), the court hold In sgt aa Sol- 

: 

"The board of education of the city of 

Dallas vas created and its powers and duties 

prescribed by article 5 of the charter of 

the said city hereinbefore copied. The board 

derives its existence and all of the authorlty it po~s4a44s from the charter, which opsrates only within the llmita of the city. By 

the provisions of the chartor, the board had 

entire control of the school fund and of the 

~;~xw~~y; ln fact, of everything pertaining 

The auditor OS ths city 1s required 

to pass'upon all accounts of the aaid board, 

and no act of ths board has any reference 

whatever to the county or Its ofilcere. The 

relation of the board oS education to the 

county i8 only incidental to,its bslng a part 

OS the srstsm of fro4 school4 of the etat4. 

We thereSore conalude that the members of the 

board of education am oSSlcers of the city 

of Dallas. and not OS the county OS Dal1 

6ortum v. Board OS OSSlcere, 109 lI Y 1;:' 

16 H. E. 328; Throop on Public OSSic4&3, d7. 

The members of th4 board of 4ducation b4ing 

of the city word not vlthln the tom of article 5, %24, of the Constitution and it was 
Hon. Carroll F. Sullivant, page 3 (V-945) 

within the power of the Legislature to provide for their removal otherwise than by the 

judge of a aim-ict court.’ (Eanphasis ours.) 

For further Information see Fowler v. Thomas, 

275 S.W. 253 (Tex. Clv. App. 1925, error di6m.); Keyker 

v. Watson, 291 S.W. 957 (Tex. Clv. App. 1927). 

It is our opinion, thsrefore, that the two offices In question are not incompatible, and that a County Attorney may servo at the 4amo time as trust44 OS a 

municlpallg controlled school district. 

SUMMARY 

On4 person nay hold at the aam4 tire both 

the 0SSices of County Attorney and trusts4 of 

a municipally controlled school district; the 

said offices being not incompatible and the office of trustee not being one of emolum4nt. 

Art. XVI, Sec. 40 Constitution of Texas. 

Youra very truly, 

ATTORNEY fflPCEF&iL OF TEXAS 

JEFtbh 

w 

FIRST ASSISTANT 

ATTORlCW OENEIUL