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AUWI-IN ~.TEXAS November l?, 1949

Hon. Carroll F. Sulllvant OpinionNo. V-945. County Attorney Cooke County Re: The legality of the CounQalnesvllle,

Texas ty Attorney serving as a trustee of the munlclpally controlledpublic Dear Sir: schools at Gainesville.

We refer to your letter of recent date requesting an opinion of this departmenton the followingquestion: May the County Attorney aepve at the

same time as trustee of municlpallg owned schools? Dual officeholding is expressly forbiddenby Section 40, Article XVI of the Texas Constitution when both officesare 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 compensationto 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 violatedby the facts submitted.

The constitutional prohibitionagainst the holding of more than one office of emolument (Art.XVI, Sec. 40) is inapplicableto 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 fundamentalrule 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 Educationof Bell County (KY.) 114

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

We have consideredthe statutesrelative to the respectiveduties Incumbentupon a CountyAttorney and a trustee OS a munloipallgcontrolledschool district. We can conceive of no sound basis upon which it may be said that the oSSlc44are incompatible. We have been unable to find any statuteprovidingthat either office 14 acoountableto, under the dominion oS, or subordinateto the other, or which provides that either officehas a right to interferevlth ths other in the performanceof any offlclalduty. Nor have w4 been apprised of any roason why the dutioe of a CountyAttorneyvould be Lnconsistent or In conilictwith the tlutlee of a trustee of a municipallycontrolledschool 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 educationof the city of Dallas vas createdand its powers and duties prescribedby article 5 of the charter of the said city hereinbeforecopied. The board derives its existenceand all of the authorlty it po~s4a44sfrom the charter,which opsrates only within the llmita of the city. By the provisionsof 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'uponall 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 educationto the county i8 only incidentalto,itsbslng a part OS the srstsm of fro4 school4 of the etat4. We thereSoreconaludethat the members of the board of educationam 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 4ducationb4ing of the city word not vlthln the tom of article 5, %24, of the Constitution and it wasHon. Carroll F. Sullivant,page 3 (V-945)

within the power of the Legislatureto provide for their removal otherwisethan by the judge of a aim-ict court.’ (Eanphasis ours.)
For further Informationsee 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 questionare not incompatible, and that a County Attorney may servo at the 4amo time as trust44 OS a municlpallg controlledschool district.
SUMMARY On4 person nay hold at the aam4 tire both the 0SSices of County Attorney and trusts4 of a municipallycontrolledschool district; the said officesbeing not incompatibleand the office of trusteenot being one of emolum4nt. Art. XVI, Sec. 40 Constitutionof Texas. Youra very truly, ATTORNEY fflPCEF&iL

OF TEXAS

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