. . ,

TBIEATTORNEY GENERAL

OP%+EXAS

HonorableWm. J. Benardino County Attorney Montgomery County Conroe, Texas Opinion No. C-541 Re: Authority for one person stop hold at the same time the positions of Deputy Tax Collectorand Truant Officer of a school disDear Mr. Benardino: trict, and Constable,and related questions. Your request for an opinion on the above subjectmatter asks the followingquestions:

"1. If 'A' qualifiesas Constable,can he, under the law, continue to hold the positions of Deputy Tax Collectorand Truant Officer of the school district,drawing his salaries therefor, or are these positions incom atible as contemplatedby Article 16, Section &0, of our State Constitution? "2. If, in you.r

opinion, these positionsare incompatible,

and ~.‘A’ cannot continue to draw salaries for these positions,has 'A',~asa matter of law, vacated the offices of Deputy Tax Collector and Truant Officer upon qualification as Constable? "3 . If, in your'opinion,the offices of Deputy Tax Collectorand Truant Officer are vacated, would 'A' or his bondsmen be liable for any salaries received from the school d$strict as Deputy Tax Collectorand Truant Officer after qualifying as Constable?" Section 40 of Article XVT of the Constitutionof Texas provides In part:

"No person shall hold or exercise,at the same time, more than one Civil Office of emolument,except.
. .ll(Exceptions not applicable).

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Hon. Wm. J. Benardino,page 2 (C-541)

stated: In Attorney General's OpinionWW-1442 (1962), it is

"As to your question 1 (a), numerous opinions from this office have held that the positions of Tax Assessor and Collector of a county, independent school district, or of a conservation district are all civil offices of emolument. Attorne General OpinionsNos. o-697 (1939),O-2687 (19407,and WW-1295 (1962). Pruitt v. Glen Rose IndependentSchool District,‘12b Tex. 43 64 S.V.2d 1004 I19351

. We hereby reaffirm these h&.dinns and also hoidthat a county water control and improvement district is a separategovernmental authority and similar-to

a conservation

and reclamation

district, and that therefore two separate offices of emolumentare involved. It is thereforea violation of Section 40 of Article XVI for the same person to hold both offices in question.' trict, We quote.fromPruitt v. Glen Rose IndependentSchool Dis126 Tex. 45, 8% S.W.2d 1004 (lyj>),at t14 S W 2d 1007
. . : ,"Thetext, 34 TexLJur. 354, g 19, summarizes the rule thus: 'Havingelected 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, regardlessof whether they are incompatible, and if they axe indompatiblethere is a vacation of the first office regardlessof whether both are offices of emolumentwithin the meaning of the Constitution. In such circumstancesthe constitutional provision that all officers shall continue to perform the duties of their offices until a successorhas been qualifieddoes not apply."' In Attorney General's Opinion O-697 (1949), it was held: "Under Section 40 of Article 1.6 of the Constitution, above quoted, two civil officers of emolument cannot be united in'the per80np unless one of them is within the enumeratedexceptions; and a person cannot hold or exercise two such offices in either a de jure or de facto capacity. Oden vs. Sinton IndependentSchool District, 234 S.W. 1090; Tex.Jur.Vol. 34, pa 347; State.vs.Gillette Estate, 10 S.W.2d 984.
-2588-Hon. Wm. J. Benardino,page 3 (C- 541)

I,

. . . "Deputy sheriffs,deputy constables,deputy county clerks, and departmentalchief clerks are public officers. Therefore,we are of the opinion that a deputy tax assessor,-collector is an officer within the purview of the above mentioned constitutional

provisions. Tex. .62; State vs. Brooks, 42

Murray vs. State,,67 SW 26 274; Donges vs. Beall, 41 SW 26 531; Pfeffer vs. Mahuge, 260 SW 1031; Tex.Jur.,Vol. 34, p. 602.” In Attorney General's OpinionW-1316 (1962), it was held that the office of constable constituted **b** civil office of emolument yithin the meaning of Section 40 of Article XVX of the Conetltutionof Texas. In view of the foregoing,your questionssre answered as follows: 1. If "A" qualifiesa8 Constable,he cannot continue to hold the position of Deputy Tax Collectorand Truant Officer of the independentschool district.

2. If "A" qualifies for the'officeof Constable,he, ipso facto, vacates hisoffice of Deputy Tax Collectorand Truant Officer of the independentschool district.

3. Any salary paid to “A” by the school district after he has qualified for the office of Constable should be refunded to the independent school district. As "A" vacated the offices of Deputy Tax Collectorand Truant Officer of the school district, by qualifyingas Constable,his bondsmen would not be liable for any salaries receivedby "A" from the school district,after qualifyingas Constable. After vacating such offices he had no duties to perform for the school district,as he was neither a de jure nor de facto officer. SUMMARY In view of the provieions of Section 40 of Article XVI of the Constitutionof Texas, prohibiting the holding of two civil offices of emolumentat the,same time by one person, one person cannot hold the office of Constable at the same time he holds the office of Deputy Tax Collectorand Truant Officer of an independent school district.
-2589-Hon. Wm. J. Benardino,page 4 (C-541)

Whenever a person holding the office of Deputy Tax Collector and Truant Officer of an independentschool district qualifies for the office of Constable, such person vacates the first office. Pruitt v. Glen Rose Independent School District, 12b Tex. 43 v . .
, and he can no longer'drawcompensation as Deputy Tax Collectorand Truant Officer of the independent school district. As "A" vacated the offices of Deputy Tax Collectorand Truant Officer of the school district,by qualifying as Constable,his bondsmen would not be liable for any salaries.received by "A" from the school district,after qualifyingas Constable. After vacating such offices he had no duties to perform for the school district,as he was"neither.a

de jure nor de facto officer. Yours very truly, WAGGONER CARR Attorney General

JR:ms BY *ek ohn Reeves Assist&d
APPROVED: OPINION COMKITTEE W. V. Geppert, Chairman J. C. Davis Kerns Taylor Phillip Crawford Roger Tyler APPROVED F'OR

TBB ATTORRBY GENERAL By: T. B. Wright

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