### R-515

GENERAL E i&lTOkEY

OF’ TEXAS

I Bon, LoA, Woodss State Superintendent

Dspartanant of Education

l Awtfn, Terra

Att\Mtiafi: Ken, T, Y, Trimbls,

Ffrst Assistant Opinion NonV-242

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Dear Sir: Its: Artthorfty of City AttornOf to some ad trustee of f* dependent school district not IUU.W fclpally oontrollebp

Werefer to your letter of reosnt date acknowl- 'edged by the Attorney General onmay26, 1947, wherein you request an opinion from this office on the following questfonf

Maythe City Attorney serve at the same .' time as trustee of an independent sahool dfstrfct, wh%ahdfstrfot is not au.nloipully contr6llsPl Artiels XVIpSeotlon 40, Constitution of Texaas raade fsrparts

*Ropsraon shall hold or 

### exerctleee at the sametime, more than one civil offfoe of emo$a~

,. almtd * o*

Dual office holding is expressly forbidden by Sectfon 40, Atitfale XVX,of the Texas Constitution where both offfoes are ofvil offfoes of emolument, Dual offPoe holdi@ is forbidden to an extent at least by Section 33 of Article XVIwherein the acaountfng officers of the State are forbid&I to issue of pay awarrant upon the Treasurer for the payment of salary or emlpensat fen to a cfvf 1 '~@ffPcer, whoat the sametime holds another offfee of &t&a&r,trust, or profit under the United States or the State of Texasa**.** Hon. L, **A, Wooda** 0Page 2

The oonstftutfonN pmhfbftfon against the holdfng of more than one offfee of emolument (Art. XVI, Seq, 4C) fs inapplicable to the questfon under consfderatfon for the-reason that sfnoe a trustee of an fndependent school dfstrfet serves wfthornt oompensatfon, his

‘9s not en office of emolument, State VPMartin, 51 SOW, 2dp 815; Attorney General Opinion O-3308, Andsines neither a City Attorney nor a trustee of an independent sahool dfstrfat are offices to be paid out of the State Treasury, Seotfon 33 of Article XVIfs not violated un; der the facts submlttedd

Hosver, ft is also a fundamental rule of law that one person maynot hold at one time t%o offices, the **duties** of which are incompatible, andthis princfple’applb# whether or not the office is namedin the exoeptfona contained fn Article XPPp Section 40, Blenoourt t. Parker, 29 Tex, 558; State v. BrPnkerhoff, 66Tex. 45; T-8 t0 Abernathy County Line Independent School Dfs3 trfot, 290 SOW0 152; Pnnett VP Olep Rose Independent Sehool Dfstrfot, 84 SoW1.26 1004. .

Thfe prfnofple of law, fnoompatfbflfty of offfoeao fe expreeaed clearly fn 22 R,C,L, 4P4$par, 56; we 7uote fyo) fma Knwkles v. Board of Education ,of Bell County 114sow, 2d 511, p* 514, ae foPlowsn *On8of the most important testa as to whether offfo-es are fnoompatfble is found Pn the prfaefple that the fneompatfbflfty fs reaognfeeff whenever one fa subordinate to the other 4naomeof its fmportant and pr4ncfpl.e duties, or fs aubjeat to 8upePrfsfan by the: other, or where a contrariety and antagonism’ would result in the attempt by one person to diseharg8 the duties of both, Under thfs prfnofple two offfoes **are** incompatible where the **fnewmbeot**of me has the power to remove the frmmbent of the others though the aontl~anep 

### onwhich the power may be exercsfsed ia. rcroto

l Bdit also exists where the ino **ownbent**08 OIWofffrre haa the power of appofntaunt **as**to the other office, D00or to audit the loao@satbof another, or to exercise a superrlsfon Over another.n Woheoe aonsfdersd the statutea relative to the rmpeetfva du%fer fntWnbent.upona City Attorney anda 

### trwto8o? **an** fndependent senhool dfatriet which district I.

Hon. L. A, Woods - Page 3

is not municipally controlled but is governed exclusively by the laws appertaining to independent school districts.. in general Ssndwe aan oonoeive of no sound basis upon which it maybe said tlat the offices are incompatible. Wehave been unsble to find anystatute providing that either offfoe~ is accountable to, under the dominion ofs or subordinate to ths othar, or which provides that ofther office has a right to interfere with the other in the performance of anyofficial duty* Warhave webeen apprised of any reason wh would be inconsistent or I the duties of a City Attorney n conflict with the duties of a trustee of an independent school district which is not municipally controlled,

In Opinion 0-3906-A, this Department advised that it is the function of the county or district attorney to advise the school officials of independent school. ! district8 oonasrnfng the school laws and to handle their ” litigations in contested eleotioss, andthat therefore the offioes of county attorney and trustee of an fndependent school district are incompatible. But this reasoning would not apply to a CftyAttorney. !

It is our opinion, therefore, that the two offfaes in question are not incompatible sandthat your submitted auestion should be, and is, answered in ths afffrmatfve, -

0~s person *jr hold.at the sametime both

.~t~heofffoes ‘of City Attorney and trustee of an fndependent sohool dfstrict whfah is not munfcfpally controlled,, the said offfoes being not incompatible d

APPBPVED

JuIa 10, 1947 Very truly yours AlTOFUUYGWWWRAL

OFTWXAS 

# 2i?LdiFa .,ur* ATThEY GXRltEUU Chester ,E. Ollfaon Asrfstaat

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