TEXEA'P~OEWEY GENERAL 

OF TElxAs 

This opinion overrules Opinions 

O-4020 and O-4798 In so far aa 

there Is conflict. 

Hon. T.M. Trlmble, First Aaslatant 

State Superintendent of Public 

Inatructlon 

Austln, Texaa 

Dear Sir: glnlon No. O-7323 

: Legality of a superintendent 

of an Independent school dlstrlct to serve at the same 

.tlme on the County Board of 

School Trusteea. Article XVI, 

Sec. 40, Conat. of Texas. 

Ye have your recent letter asking this question: “18 it 

legal for a superintendent of an Independent school dlatrlct to 

serve on the County Board of School Truateea of hle county at the 

same time?” We answer: “No.” 

Our reasons are as followa: Article XVI, Section 40, Texas 

Constitution, prohibits with certain exceptions not material here 

any person from holding, at the same time, more than one civil office 

of emolument. 

A county school trustee holds a civil office of emolument. See 

Articles 2676, 2677, 2678a, 2681, 2683 and 2687, Vernon’s Annotated 

Civil Statutes. 

If the superintendent of an Independent school district also 

holds a civil office of emolument, the reaaon for our answer Is 

apparent. The difficulty lies 1n:drawlng the line between a “public 

office” and a “public employment. ” The concepta are different but 

the dividing line 1s often obscured by looae language and by the 

Inadequacy of language aa a medium of conveying clearout Ideas. The 

confusion 1s painfully evident In a paragraph In 34 Tex. Jur. p. 

325, which attempta to dlatlngulah the two ldeaa. 

Our Opinion No. O-4798 cited several caaea from other atates, 

holding that school teachers and school principals are not “public 

officers.” The opinion concluded that a district superintendent 

llkewlae Is not an “officer” within the constitutional prohibition 

above mentioned, but that the tax aaaeaaor-collector of the district 

Is such an “officer” because our courts have ao held. pruitt v. 

Ert Iioae 

Independent School Dlatrlct (Comm. App.) 84 S.W. (2d) 

. 
- 

Hon. T.M. Trlmble, Page 2 (O-7323) 

The Criminal Court of A peals 

v. Stevenson, 111 Pac. 26 824 7 

In Oklahoma ‘expreaaly held (Kay 

that a superintendent of an lndependent school dlatrlct la a mere employee hired under contract and la 

not an official within the meaning of an act to punish those who commit extortion under color ofofflclal right. 

Our Article 2781, Vernon’s Annotated.Clvll Statutes, preservea 

the confusion. It refera to such auperlntendents aa “employees” 

. and as “executive officers.” The statute reads aa follows: 

“The Board of Trustees of any city or town or any Independent 

school district may employ a superintendent, principal, teacher, or 

other executive officers In the schools therein for a term of not 

to exceed three yeara, provided that the Board of Trustees of an 

Independent school dlstrlct.whlch had a acholastlc population of 

5,000 or more In the last preceding scholastic year may employ a 

superintendent, principal, teacher, or other executive officers In 

the schools therein for a term not to exceed five yeara. All twelvemonth contracts made by trustees of Independent school districts 

with employees herein mentioned shall begin on July first and end on 

June 30th’of the year terminating the contract.” 

We now conciude that, despite the foregoing authorities, the 

decisions of our courts require the holding that a auperlntendent of 

schools In an Independent school district la holding an office wlthIn the meaning of Section 40, Article XVI, Constitution of Texas, 

and, to the extent that our Opinion No. o-4798 holds otherwise, such 

opinion la overruled. 

In Klmbrough v. Barnett, 55 S.W. 120, the Supreme Court of 

Texas had before It this certified question: 

“(1) Is the position of auperlntendent of the public schools of the 

city of Houston an office for which a suit may be maintained In the 

district court?” 

The Court answered as follows: “We answer the first question 

In the affirmative. The position of superintendent of the free 

schools In the city of Houston Is an office, and the lawful Incumbent 

of It would have a right of action to recover It or Its emoluments 

In case he waa unlawfully deprived of the benefit.” 

The court later reaffirmed this holding In Bonner v. Belsterling, 138 S.W. 571. The Court of Civil Appeals at San Antonio (Loa 

Angeles Independent School Dlatrlct v. Whitehead, 34 S.W. 2d 895) and 

the Court of Civil Appeals aa Austin (Temple Independent School Dlstrlct v. Proctor, 97 S.W., 26 1047) both regard the position of a 

superintendent of an Independent school district as an office for 

which suit may be maintained. The Austin Court aays this point 1s 

settled law and cites the Klmbrough case. 

Since the courts hold that such superintendent holds an 

“office”, It la a “~1~11 office of emolument,” 
Hon. TiM. Trlmble, page 3 (O-7323) 

Youra very truly 

A'J3!ORNgyQENERALOFTEiXAS 

By s/Donald Qay 

Donald Gay 

Assistant 

W:BT:egw:wc 

APPROVED AUG 13, 1946 

s/ Carlo8 Ashley 

FIRST ASSISTANT 

ATTORNEY GENESAL 

This opinion considered and approved In limited conference.