. . , 

TBIEATTORNEY GENERAL 

OP%+EXAS 

Honorable Wm. 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 Collector and Truant 

Officer of a school disDear Mr. Benardino: 

trict, and Constable, and 

related questions. 

Your request for an opinion on the above subject matter 

asks the following questions: 

"1. If 'A' qualifies as Constable, can he, 

under the law, continue to hold the positions 

of Deputy Tax Collector and Truant Officer of 

the school district, drawing his salaries therefor, or are these positions incom atible as contemplated by Article 16, Section & 0, of our State 

Constitution? 

"2. If, in you.r opinion, these positions are 

incompatible, and ~.‘A’ cannot continue to draw 

salaries for these positions, has 'A',~as a 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 Collector and Truant Officer are vacated, 

would 'A' or his bondsmen be liable for any salaries received from the school d$strict as Deputy 

Tax Collector and Truant Officer after qualifying 

as Constable?" 

Section 40 of Article XVT of the Constitution of 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 Opinion WW-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 Opinions Nos. o-697 (1939), O-2687 

(19407, and WW-1295 (1962). Pruitt v. Glen Rose 

Independent School 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 separate governmental authority 

and similar-to a conservation and reclamation district, and that therefore two separate offices of 

emolument are involved. It is therefore a violation 

of Section 40 of Article XVI for the same person to 

hold both offices in question.' 

trict, 

We quote.from Pruitt v. Glen Rose Independent School Dis126 Tex. 45, 8% S.W.2d 1004 (lyj>), at t14 S . W . 2d 1007 : 

,"The text, 34 TexLJur. 354, g 19, summarizes 

the rule thus: '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, 

regardless of whether they are incompatible, and if 

they axe indompatible there is a vacation of the 

first office regardless of whether both are offices 

of emolument within the meaning of the Constitution. 

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."' 

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 enumerated exceptions; and 

a person cannot hold or exercise two such offices 

in either a de jure or de facto capacity. Oden 

vs. Sinton Independent School 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 departmental chief 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 Opinion W-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 Conetltution of Texas. 

In view of the foregoing, your questions sre answered as 

follows: 

1. If "A" qualifies a8 Constable, he cannot continue to 

hold the position of Deputy Tax Collector and Truant Officer of 

the independent school district. 

2. If "A" qualifies for the'office of Constable, he, 

ipso facto, vacates hisoffice of Deputy Tax Collector and Truant 

Officer of the independent school 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 Collector and 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 

qualifying as 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 Constitution of Texas, 

prohibiting the holding of two civil offices 

of emolument at 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 Collector and Truant Officer of an independent school district. 

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Hon. Wm. J. Benardino, page 4 (C- 541) 

Whenever a person holding the office of 

Deputy Tax Collector and Truant Officer of an 

independent school 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'draw compensation 

as Deputy Tax Collector and Truant Officer of 

the independent school district. As "A" vacated the offices of Deputy Tax Collector and 

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 qualifying as 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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