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 Independent School District collects its own taxes and has employed a Tax 

Aeaeesor-Collector, who alao is employed 88 a 

Business Wanager of the Ranes Independent School 

District.. This same Tax Assessor-Collector aleo 

serves as Assessor and Collector of taxes of the 

Travis County Water Control and Improvement District No. 10. Such employee does not re,side in 

the.Eanes Independent School District." 

"On March~ 3, 1959, Logan Cummings was hired 

by both the Banes Independent School District and 

Travis County Water Control and Improvement Dlstrlct 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 continues to 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 Education Agency (2) 

Eanes Independent School District (3) Travis 
Honorable Jerry Dellana, page 2 (WW-1442) 

County Water Control and Improvement District No. 

lo.* 

"1. I8 the above mentioned employee inhibited by Art. 16, Sec. 40,.of the Texas Constitution 

or any other provision of the Constitution or statutes from holding the following: 

"(a) The nosition of Tax Assessor and 

lector of Ranes Independent School District 

Travis County Water Control and Improvement 

trlct Wo. 10 at the same time? 

."(b) The position of Tax Assessor and 

Coland 

DlsColDls- _ . 

lector of taxes of Ranee Independent School 

trlct and Business Manager of Ranes Indepenaent 

School District at the same time? 

"(c)The positlon.of Tax Assessor and Collectorof Ranes School Matrlct,.Business Manager 

and .*Acting Superintendent* at..the same time? 

w2. Does the law require the Assessor and 

Collector of taxes for Ranes Independent School 

District to live within the Panes Indenendent 

School Mstrlct 

office?" 

Section 40 

states as follows: 

as a qualification to hold the 

Of Article XXI of the Constitution of Texas 

"Holding more 

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 National Guard, .the National Guard Reserve, 

and the Officers Reserve Corps of the United States 

and enlisted men of the National Guard, the National 

Guard Reserve, and the Organized Reserves of the 

United States,and retired offlcers of the United 

States Army, Navy, and.Marine Corps, and retired 

warrant officers, and retired enlisted m&:&f! 

the United States Army, Navy, and Marine Cor.ps,' 

unlees otherwise.speclall;y provlded',here.Ln; .Provided 
Honorable Jerry Dellana, page 3 (\+W-1442) 

that nothing in this Constitution shall be construed to prohibit an officer or enlisted man Of 

the National Guard, and the National Guard Reserve, or an officer In the Officers Reserve Corps 

of the United States, or an enlisted man In the 

Organized Reserves of the United States, or retired officers of the United States Army, Navy, 

and Marine Corps, and retired warrant offlcere, 

a'd retired enlisted men 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,question l,(a), .numerous opinions from this 

office.have held that the positi,ons of Tax Assessor and Collector 

of a county, independent school district, or of a conservation 

distr.lct are all civil offices of emolument. Attorney General 

Opinions Nos. o-6%.(193g), o-2687 (1940), and WW-1295 (1962). 

Pruitt v. Glen Rose Independent School 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 

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~vlolation of Section 

,40 of.Article XVI for the same person 'tom hold both offic,es in 

question. 

We requested' specific informati,on as to when the man In 

question assumed the duties of one ~office, and when he assumed 

the duties of the other. Your,reply then stated "On March 3, 

1959, Logan Cummings was 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 indicated his assumption 

of the duties of one office before the other. We quote 'from 

Prultt v. Glen Rose Independent School District, supra, at page 

1007: 

"The text, 34 Tex,Jur. 354, 8 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. 

Thlo 13 true, where both offices are placec of 

emolument regardless of whether they are lnme, and if they are 1ncompatibIe t=re 
Honorable Jerry 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 clrcumstances the constitutional provision that 

all officers shall continue to perform the duties 

of their offices until a 8uccessor has been 

qualified does not apply."' (Emphasis added) 

depends on which office he assumed last. 

The.question as to which office has been vacated 

Since the Attorney 

GeneralIs office does not determine questions of 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 operation of law of theflce first assumed, in which case 

the officeholder validly holds the second office. 

sltua'tlon. 

Your question 1. (b.) presents a slightly different 

There the problem concerns the same person's acting 

as tax assessor-collector and also.as business manager of t,he 

same Independent school 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. .Among the criteria for 

determining whether an employment is a public office 

are the following: the delegation of a portion of 

.the sovereign functions of the gdvernment; the'requirement of an official oath; that the powers entrusted are conferred by law and not by contract; 

and the fixing of the duration or term of office. 

It 13 the duty pertaining to the office and~the,nature of thatduty, and not the extent of authority 

which makes the Incumbent an 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 business manager of 

an independent school district leads u3 to the conclusion that 

such posltlon Is not a "Civil Office of emolument" as that phrase 

Is used In the Constitution. Article 2791 of Vernohls Civil 

Statutes provides for the specific position of tax assessor and 

collector, and we find no law or any other authority giving rise 

to the pooltion of business manager although,the trustees may 

create the position if they deem it necessary. In addition the 

duties OP such an employee are fixed by.contract and not conferred 

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

by law. It 13 aloo significant that such employee ordinarily 

serves at the discretion of the trustees, and that therefore 

no specific term of office Is involved. 

'. Since the gosltlon of business manager is not a "Civil 

office of emolument, it follows that one serv1n.g as tax assessorcollector may also serve as business manager. Aside from the 

constitutional prohibition of holding two civil offices at the 

same 

E 

lme, we f.ind no incompatlbillty resulting when one person 

perfo ma both functions within the same district. 

Many opinions from this office have heretofore held, 

as with tax assessor-collectors discussed above, that a superintendent of an lndetendent school district holds a "clvll 

office of emolument. Opinions Nos. O-7323 (1946), V-1244 (1951). 

It therefore follows that It Is unconstitutional for the same 

person to be tax assessor-collector and superintendent or "acting 

superintendent" of an'independent school district at the same 

time. 

Opinlon'No.~ WW-1412 (1962) properly.disposes of your 

question No. ,2, which opinion held as follows: 

"The tax assessor and collector of an lndependdent school district is not a *civil officer1 wi,thln 

the contemplation of SectIon 14 of Artlcle~XVI of 

'the Constitution or'Texa8 and would'not.have to 

reside within the territorial confines of such 

school district." 

This holding was based,on the case of Aldlne Independent School 

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 'a water. control 

and improvement district, the superintendent oracting 

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 therefore a person holding such position may also 
Honorable Jerry 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 boundaries of that 

district. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Fred D. Ward 

Assistant 

FDW:wb':mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Arthur Sandlin 

John Reeves 

Bill Allen 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore