NE 

October 17, 1951 

Hon. Murray H. Nance, Jr. 

County Attorney 

Grayson County 

Sherman, Texas 

Dear Sir: 

Opinion No. V-1322 

Re: Eligibility of a member of the 

Board of Equalization of an 

independent school district to 

serve on the County Board of 

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 election. Thereafter, he accepted appointment by the Sherman Independent 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 accepts, 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 provides: 

“No person shall hold or exercise, at the same 

time, more than one Civil Office of emolument, except . . . [exceptions not pertinent herein] ,” 

Article 2676, V.C.S., provides in part as follows: 

“The general management and control of the public free schools and high schools of each county, unless 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 meetings once each quarter, on the first Monday in August, 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 Dollars ($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 assessment 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 appointment 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 7215, V.C.S.. prescribes the oath to be taken by 

I I _ 

members of the board of equalization. 

The definition of public office as used in Section 40 of Article XVI of the Constitution of Texas, defined in part by the Supreme 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 emoluments belonging to it; ‘a public station or employment conferred by the appointment of government’; 

and ‘the,right, authority and duty created and conferred by law, by which, for a given period, either 

fixed by Jaw, or enduring at the pleasure of the creating payer, an individual is invested with some porsovereign 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.); mson 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 members 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 second office, ipso facto and as a matter of law. he vacates the first office. This is true where both offices are places of emolument, . . . In such circumstances 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 equalization of an independent school district. Acceptance of and qualification for the latter office operates to vacate the former. 

SUMMARY 

By virtue of the provisions of Section 40 of Article XVI of the Constitution of Texas, 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 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: 

J. C. Davis, Jr. 

County Affairs Division 

PRICE DANIEL 

Attorney General 

Jesse P. Luton. Jr. 

Reviewing Assistant 

Everett Hutchinson 

Executive Assistant 

Chester E. Ollison 

Assistant 

CEO:awo:b