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October 17, 1951

Hon. Murray H. Nance, Jr. County Attorney Grayson County Sherman, Texas

Dear Sir: Opinion No. V-1322 Re: Eligibility ofa member ofthe Board ofEqualization ofan independent school district to serve on the County Board of School Trustees. Inyour request for an opinion you state that a person was elected as a member ofthe Grayson County School Board inApril, 1951, and qualified at the first meeting in May following the election. Thereafter, he accepted appointment by the Sherman Independent School District toits Board of Equalization, qualified and served as a member ofthat board, receiving as compensation for such services the sum of $250.00. You then ask the following question: Does a member ofa 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 ofthe county school board? Section 40 ofArticle XVI ofthe Constitution of Texas provides: “No person shall hold or exercise, at the same time, more than one Civil Office ofemolument, except
. . . [exceptions not pertinent herein] ,” Article 2676, V.C.S., provides in part as follows: “The general management and control ofthe 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 oftwo years. The time for such election shall be the first Saturday in April ofeach 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, onthe first Monday inAugust, 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 acivil 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 aboard of equaliiation before which the citizen is entitled toannear and be heard uoon anv assessment ofhis property. MilleLrav. Vance, 107Tex.b85, 180S.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 ofaboard ofequali&- tion by the board oftrustees ofthe independent school district. They further provide that the board oftrustees shall have the same power with reference to the assessment and collection oftaxes for free school purposes that are conferred by law upon the assessor and collector oftaxes in and for any incorporated city, town, or village. Thus, we are referred to Article 1048 providing for the appointment ofaboard ofequalization, to Article 1056 which provides for compensation ofthe board, andto 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, 102S.W.Zd 184 TI9371. Article 7215, V.C.S.. prescribes the oath to be taken by

I I _ members ofthe board ofequalization.

The definition ofpublic office as used in Section 40 ofArticle XVI ofthe 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.5follows:

“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 byJaw, or enduring atthe pleasure ofthe creating payer, an individual is invested with some porsovereign functions ofthe government, toHon. Murray H. Nance, Jr., page 3 (v-1322)

be exercised by him for the benefit ofthe public.’ The individual so invested is a public officer.” A similar statement ofthis rule may be found in Knox v. Johnson, 141S.,Ir.2d698 (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 aboard ofequalization ofan independent school district (the members thereof receiving compensation for service thereon) holds, as such, an office ofemolument 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 ofAustin, 56 S.N. 954 (Tex. Civ. App. 1900, error ref.); Zachary v. City of Uvalde, 42 S.W.2d 417 (Tex. Comm. App. 1931).

Inthe 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. hevacates the first office. This is true where both offices are places ofemolument,

. . . Insuch circumstances the constitutional provision that all officers shall continue to perform the duties oftheir offices until a successor has been qualified does not apply.* Accordingly, by virtue ofthq’provisions of Section 40 of Article XVI ofthe 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 ofmembership onthe board of equalization ofan independent school district. Acceptance ofand qualification for the latter office operates tovacate the former.

SUMMARY By virtue of the provisions of Section 40 ofArticle XVI of the Constitution of Texas, one person may not at the same time legally hold both the office ofcounty school trustee and the office of membership onthe board ofequalization ofan independentHon. Murray H. Nance. Jr., page 4 (V-1322)

school district, and acceptance ofand qualification for the latter office operates tovacate 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

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