September 17, 1962

Iionorab;e_Jerry

Dellana - * Opinion No. hW-1442 county nttorney Travis County Courthouse Re: Whether a person may hold Austin, Texas the position of Tax Assesror and Collector of an independent school district and at _~~_ the same time hold such

position in a county water control and improvement Dear Mr. Dellana: district and related questlone.

Your request for opinion from this office reads in part as follows:

q The'Banes IndependentSchool District collects its own taxes and has employeda Tax Aeaeesor-Collector, who alao is employed 88 a Business Wanager of the Ranes IndependentSchool District..This same Tax Assessor-Collector aleo serves as Assessor and Collectorof taxes of the Travis County Water Control and ImprovementDistrict No. 10. Such employeedoes not re,side in the.EanesIndependentSchool District."
"On March~

3, 1959, Logan Cummings was hired by both the Banes IndependentSchool District and Travis CountyWater Control and ImprovementDlstrlct No. 10 as their joint Tax Assessor Collector. "That he assumed the duties of both offices on March 3, 1959. "That all 1960 TaX Notices of both districts were signed by Logan Cummings. "That Logan Cummings continuesto this date to hold both offices. "That ~3.t

is the understanding of this Trustee that Logan Cummin 8 haa received a salary during this period from $1) Texas EducationAgency (2) Eanes IndependentSchool District (3) TravisHonorable Jerry Dellana,page 2 (WW-1442)

CountyWater Control and ImprovementDistrict No. lo.* "1. I8 the above mentioned employee inhibited by Art. 16, Sec. 40,.of the Texas Constitution or any other provisionof the Constitutionor statutes from holding the following: "(a) The nositionof Tax Assessor and lector of Ranes IndependentSchool District Travis County Water Control and Improvement trlct Wo. 10 at the same time? ."(b) The position of Tax Assessor and ColandDlsColDls-

_ . lector of taxes of Ranee IndependentSchool trlct and BusinessManager of Ranes Indepenaent School Districtat the same time? "(c)The positlon.ofTax Assessor and Collectorof Ranes School Matrlct,.Business Manager and .*Acting

Superintendent*

at..the same time? w2. Does the law require the Assessor and Collectorof taxes for Ranes IndependentSchool District to live within the Panes Indenendent School Mstrlct office?" Section 40 states as follows: as a qualificationto hold the

Of Article XXI of the Constitutionof Texas
"Holdingmore to vote than office; exceptions;right

"Sec. 40. No person shall hold or exercise, at the same'tlme,more than one Civil Office of emolument,except that of Justice of Peace, County Commissioner,

Notary Public and Postmaster,Officer of the NationalGuard, .the National Guard Reserve, and the OfficersReserve Corps of the United States and enlistedmen of the National Guard, the National Guard Reserve, and the Organized Reserves of the United States,andretired offlcers of the United States Army, Navy, and.MarineCorps, and retired warrant officers, and retired enlistedm&:&f! the United StatesArmy, Navy, and Marine Cor.ps,' unlees otherwise.speclall;y provlded',here.Ln;

.ProvidedHonorableJerry Dellana, page 3 (\+W-1442)

that nothing in this Constitutionshall be construed to prohibit an officer or enlistedman Of the National Guard, and the National Guard Reserve, or an officer In the OfficersReserve Corps of the United States, or an enlistedman In the OrganizedReserves of the United States, or retired officers of the United States Army, Navy, and Marine Corps, and retired warrant offlcere, a'd retired enlistedmen of the United States ! A my, Navy, and Marine Corps, from holding in conjunction

with such office any other office or position of honor, trust or profit, under this. State or the United States, or from voting at any Election;General, Special or Primary, In this State when otherwise qualified." (Emphasis. added)
As to your,questionl,(a), .numerous opinions from this office.have

held that the positi,ons of Tax Assessorand Collector of a county, independentschool district, or of a conservation distr.lct

are all civil offices of emolument. Attorney General OpinionsNos. o-6%.(193g), o-2687 (1940), and WW-1295 (1962). Pruittv. Glen Rose IndependentSchool District, X26 Tex. 4.5, .84 W 2d 1004 (1935) W h h&!l that a'county'watk b ffi :%3(oEnd th holdings and also

~~pro~~~ent

district is a separategovernmental~authority and similar to a conservationand reclamation

district; and that therefore two separate.offices of emolumentare.

involved. It is thereforea~vlolationof Section ,40 of.ArticleXVI for the same person 'tom hold both offic,es in question.

We requested'

specific informati,on as to when the man In questionassumed the duties of one ~office, and when he assumed the duties of the other. Your,reply then stated "On March 3, 1959, Logan Cummingswas hired by both.

. .'I Although he was hired by both on the same day, he must have made his bond for one district first, or done some act which indicatedhis assumption of the duties of one office before the other. We quote 'from Prultt v. Glen Rose IndependentSchool District, supra, at page 1007: "The text, 34 Tex,Jur. 354, 8 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. Thlo 13 true, where both offices are placec of emolument regardlessof whether they are lnme, and if they are 1ncompatibIet=reHonorableJerry Dellana,page 4 (WW-1442)

Is a vacation of the first office regardless of whether both a-e offices of,emolument within the meaning of the'Constltutlon. In such clrcumstancesthe constitutional provision that all officers shall continue to perform the duties of their offices until a 8uccessorhas been qualifieddoes not apply."' (Emphasisadded)
depends on which office he assumed last.

The.question

as to which office has been vacated Since the Attorney GeneralIsoffice does not determine questionsof fact, we cannot decide this question,but do hold that under the facts submitted and the holding of the Prultt case, that there has been a vacation by operationof law of theflce first assumed, in which case the officeholder

validly holds the second office.

sltua'tlon.

Your question 1. (b.) presents a slightlydifferent There the problem concerns the same person'sacting as tax assessor-collector and also.as business manager of t,he same Independentschool district. Heretofore such a question has not been before this office.

Texas Jurisprudence defines an office as follows: "'Office'embraces the Ideas of tenure, duration, emolument;and duties. .Amongthe criteriafor determiningwhether an employment is a public office are the following: the delegation of a portion of .thesovereignfunctionsof the gdvernment;the'requirementof an official oath; that the powers entrusted are conferredby law and not by contract; and the fixing of the duration or term of office. It 13 the duty pertainingto the office and~the,nature of thatduty, and not the extent of authority which makes the Incumbentan officer; and'one Is. none the less an officer because his authority Is confined to narrow limits." 34 Tex.Jur. 323;
A consideration

of the position of businessmanager of an independentschool district leads u3 to the conclusionthat such posltlon Is not a "Civil Office of emolument"as that phrase Is used In the Constitution. Article 2791 of Vernohls Civil Statutesprovides for the specificposition of tax assessorand collector,and we find no law or any other authoritygiving rise to the pooltion of business manager although,thetrusteesmay create the position if they deem it necessary. In addition the duties OP such an employee are fixed by.contractand not conferred

,Honorable Jerry Dellana,page 5 (NW-1442)

by law. It 13 aloo significantthat such employee ordinarily serves at the discretionof the trustees, and that therefore no specific term of office Is involved.

'. Since the gosltlonof business manager is not a "Civil office of emolument, it follows that one serv1n.g as tax assessorcollectormay also serve as business manager. Aside from the constitutional

prohibitionof holding two civil offices at the same Elme, we f.ind no incompatlbillty resultingwhen one person perfo ma both functionswithin the same district.

Many opinions from this office have heretoforeheld, as with tax assessor-collectors discussed above, that a superintendentof an lndetendentschool district holds a "clvll office of emolument. OpinionsNos. O-7323 (1946), V-1244 (1951). It thereforefollows that It Is unconstitutional for the same person to be tax assessor-collector and superintendent or "acting superintendent"

of an'independentschool district at the same time. Opinlon'No.~ WW-1412 (1962) properly.disposes of your questionNo. ,2,

which opinion held as follows: "The tax assessor and collectorof an lndependdent school district is not a *civil officer1 wi,thln the contemplationof SectIon 14 of Artlcle~XVIof 'the Constitutionor'Texa8 and would'not.haveto reside within the territorialconfines of such school district." This holding was based,on the case of Aldlne IndependentSchool Dlstrictv. Standley; 154 Tax. 547, 28b'S.W.2d 576 n955)

.
S U 13 ti A R,Y The positions 0r tax Gisessor-coilector or an 'independent

school district or of 'awater. control and improvementdistrict, the superintendentoracting superlntenden,t

of an independent school district are all civil offices of emolument, and It is a violation of Section 40 of Article XVI of the .Constitutlon for one person to hold two or more of suah offices. The pocltlon of business manager of an lndependent cchool district is not a ~1.~11~ office of emolument, and thereforea person holding such position may alsoHonorableJerry Deliana,page 6 (WW-1442)

hold any civil office of emolument In addition thereto. The tax assessor-collector of an independent school district is not an officer of such district, and need not reside within the boundariesof that district.
Yours very truly,
WILL WILSON Attorney General of Texas

Fred D. Ward Assistant FDW:wb':mkh APPROVED: OPINIONCOMMITTEE
W. V. Geppert, Chairman Pat Bailey Arthur Sandlin John Reeves Bill Allen
REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore