Honorable F. T- Bmham Opinion No, c-43 

Criminal Dlstrfct Attorney 

Cameron county 

Brownsville, Texas 

Ne: 

Dear se: 

Whether+ a county CaraniaaloDer 

with an unexpired telB of 

more than one year autaemtleally reel(gsae his otflco um 

becoming a candidate for 

trustee of an fndependent 

school dl&Plet, and related 

quert1one. 

In xollr opiasfm rJe@eet, you et&e that mrIr. TQW Tmmyo, 

Jr., was elected to the offfoe oi Oounty Cmnl88loner~ Pre8lmt No. TWO, cawroa COWty, Zbx88, at the general elmtlon 

inNovember,1962,for a iour-tc#r%enr. Ilr. !lbamyo~e duly. 

qucrllfled and aaeumed the dutier of such offfce on January 1, 

1963. On oraboutthe Sthdey of l@reh, 1963, Nr. Tammy 

flled a8 a candidate ior the offfoe of tm8tee of the Brtnm8- 

vllle Consolidated IndWendent S&o01 Disttiot. Qn the basla ' 

of these raateo you hve requested an opinion on the folloul~ 

QWotlon8: 

'OS a 

(1) Are the ofYfoe8 of Bounty omlr~,ioner and trustee 

ootmolldatedi~ t 8@loo~ d%rtPfat ln~~tfble? 

(2) Ii a tmunty omf,rfoner wit48 an miretd term in 

-888 Of m mF eQBWVEe8 OF flh f'aOt dOO8 b8Om a Oandlid8t.o for the offfae of tm8tee of.6 oun8olfdated fndependent ; 

8ohool di8tciotp docrr 8uOb a- or oeind1da0y eormtitute an autarsW.0 rrrigrtla d #PO @f&O* & oouaty 00158- ' 

8lamP thoo tulm 

(3) Isa the over& that maoh aawuwwwt or cmdl48oy a8 

8et out in @e8tOon Ilo. 'ho &oee oomtltute an autmtfc rep 

8i@l8tiORanbthO OPerti~Of Q V808tkO 

-8iotUti hold the &floe 'da $I& 

,daQIttle OOuQtf OOIfl hi@ 8uOOe8OOF ha8 

boa& appo1astodt 

h'tiOl0 m, 6OQtiola # Of th8 5U88 COWt%tUtiOn prorLck8 th8t 80 v 8h811 hold OF WlWOi8eo et the MW ti80, 

moPeth85 am oirlloffloe of moluwm%, exoeptthsbto? 

. . 
. 

Bonorable P ., TI, ceaham page 2 O$inlon No, C-43 

Ju8tioe of the peace, counts cowi88Ioner, and certain n8med 

ofSIoee not rtex%el to thlr opinion. 'IhIs conatltutlonal 

provl.8Ion would not prevent the aa@e $erson from holding the 

office8 of county o=Irsloner end tru8tee of an Independent 

8ohool dfrtrfet, not only because the office of .county armrl8rIoner I8 emressly excepted but ale0 becaure the offfae 

of truetee of an Xndependent school disttiet Iti noe an oftlae 

of emolument, However, the earn8 person may not hold tip 

oiffoes whfoh am f.ncwtIbls, even though the holdfng of 

JurIaprudenCe 8&e orat the foll.~wIng teete for deteraafnfng 

Incagwtibllfty: 

o * * * Offfoes are Incompetfble where thefr dutfea 

are or.-3 be Incorsrfstent QF coeflfct, but not ’ 

where their &tier are wholly unrelated, are In no 

manr6eP fnoon8lrtent and ere never In oonflfot, and 

where wIthOr offloer f8 06OOtSntmBle er UWW the 

&3Wrdm OS, Qc rubordIeabt6 to, I%6 other, or.&8 

asaf rIgI& QP powor- to I~terfwa wltb'ehe other i.ti 

the perfawan~e of any draty ." 

We have been un8ble to ffnd any court decfelon eeklltq 

the question of whether the two offices here Involved are Inolty are IQ0 

T 

tible, Sor the FeQIOn# rtated %n the followtng quotation M the opInloQ~ 

"In OUF oplnlm the oSfIoe8 of school trustee 

aEd alderman am lnoompetlblei for under OUP system 

there ax% in the ofty counoil. or board of aldermen 

~verlow dfreotorl or 8upervIrory power8 exertable 

In re8p8ot to rohool property looate& within the 

ofty or tom and in XWpeOt to the dutfer ci? rohool 

trwte8 

mightwe E 

rfonmble wIthin it8 llaftr--e-g*, there 

arlre a oonfllot of dlroretlon or duty 

in re8peot to health, qureranM.ne, san%taw, and 

fire preventfan re laMone. See artfole8 1015 

lo@, lO?l* 1.8. 1%. Tf the a8ue ~epson 0ou1A be 

a #ah001 trrastee and a member of the cffy cbunetl 
Honorable F. T. Graham page 3 Opinion No. C- 43 

or board of aldermen at the same time, school policies, In many Important respects, would be subject 

to direction of the council or aldermen instead of 

to that of the trustee8." 

In regard to the matters mentioned in the court’s opinion, 

both the school board and the city council are invested with 

discretion or duty. Unlike the city councfl, the commlssfoners court has no corresponding supervisory powers over the 

school property of an Independent school district, nor does 

it have any authority over the policies adopted by the 

trustees for the administration of the school system. 

Several prior Attorney Oenera18s opln.l.ona have dealt with 

this question. Attorney Qeneral's Opinion No. O-998 (1939) 

held that the offices of county commissioner and county school 

trustee are Incompatible, citing a number of statutes on which 

this conclusion was based and referring to an opinion written 

In 1929 which held that the offices of county commissioner and 

truatee of a school district were Incompatible. Opinion No. 

O-5145 (1943) held that the offices of county commissioner and 

trustee of a rural high school district are incompatible, mentioning apeclflcally the duty of the commissioners court to 

canvass the returns of certain school dlstrldt elections as 

creating an Incompatlbillty. We do not agree that the duty of 

canvassing the returns of elections, which Is largely mlniaterlal In nature, creates an Incompatibility between the 

offices, but there may be certain other duties of the commlsaioners court with respect to rural high school districts 

which would do so, and we express no opinion as to whether the 

result.reached fn Opinion No. O-51&5 Is correct. 

Opinion No. V-63, .rendered in 1947, reviewed the former 

opinions and held thet the offices of county commlssloner and 

truetee of an independent school district are not incompatible. 

We have reconsidered this holding and have concluded that It Is 

correct e 

In your brief you mention a possible conflict of interest 

where the school board requests the commissioners court to 

pave or Improve a, certain road whl.ch, if paved, would materlally affect travel of school. buses, We are impressed by thlr 

argument, but we do not believe the supervisory authority of 

the commissioners court over the county roads within the dlstrlct creates such a conflict of Interest as to make the 

offices Incompatible. Although the school board would have an 

Interest In the rerrponue to Its requeet8 neither body fs In 
Honoreble F. ‘is. Qmham page 4 CIpiFaian No, C-43 

the position of oontrollfng the actions of the other, and 

neither hae any authority In the management of the affair 

entrusted to the other. Uhele the matter is not free Srom 

doubt, we adhere to the holdInS in Qpfnfon No; v-63. 

Your eeccnd queetfon fnvolvtt a constmetfon of the provision in Article XVI, Sectfon 65 of the Connstitut%on, added 

by amendment In 1958, which reads: 

L 

*Provided, however@ that fp a~ of the offfoers 

named herein &all announoe their txindidacbc~~, OF 

shall in fact bei%&? a catm&&t~ fn %ny General, 

Special or PHmary Blectlow, for asay office of ppoI fit or trust m&w the lawe of thfr State or the 

Unftt4 States other than the offfct then held, at 

any time tihen the me fred tena sf the off’ict then 

held #hall exoaed one “;p 1) year Ouoh announcement 

.or ouch candidacy shall conetidute an automatfc real.g%tfon of the offlee then held, and the vacancy 

thereby cre%ted t&all be ff.11~4 propeuant to law In 

the same IIVMXMP aa other vmmccfte .for such office 

are filled u * 

WMJ officera named era Section 65 are those district, c&&P 

aad precinot ofricerr whose tezm were fnoreartd hi6 two 

~tarw to row year6 by the constftutfaaael 

in l*, anQ fncludt county coarlrrfomam. 

anIe?&ent adopted 

$tctim 65 of im%iclt XVI p~~v%&tr that auttmatic rkl icpstion shall wrult iroa beomfrag a omndbidate “in any 

f 

memlp’8~eofaP or grWmy eleotfon. fop any offloe of ppoit or trust under the laws ot thlr hate oc the PJnnfttd 
Honorable F. T, Graham page 5 Opinion No. C-43 

concluded that the 1958 amendment had two purposes: (1) to 

reduce the duration o? appointments reaultlng from relinquirhment of the office then held upon election to the second 

office, and (2) to prevent the ofifcer from &gaging In a 

political campaign for another offlce at any time except during the last year of hfs term. Although candidacy for an 

office which could be held efmultaneouely wfth the of?Ice 

then held would not be contrary to the ffret purpose, it is 

contrary to the second purpose. Ae already noted, a person 

mey law?ully hold the offloe of county comfaaloner or 

justice of the peace eImultaweou6ly with another offlce I? the 

two offices art not incompatible. Certain o?ffaea whloh are 

filled at the gtne~l eltotfon for state and countjr offlcers 

are not fncomp%tlble wfth the offioee of county cumfasloaer 

and JustIce of the peaot. Yet we think there can be no doubt 

that oandldacy Par any other offlct which ie ?fll&.at the I 

general tltotion r0P state and oounty orricers, at a tiae 

when the untaplrtd terr of the offfot then held txattde4 one 

year, would oonatftuta an automatfo m9gnation, regardlose of 

whether both oifl~tr could be held by the 8ame perron. 

The three typtrr 0r tleationa r0r stltctlon 0r public 

offloers are gtneal or “rtgulap” eleetfona, sptoial tltotlone 

(both of which are elections in the true eenee thnt o?fIctrs 

are elected thereat), and prfmarg tleotlons for nomination of 

candlslatts by polftfcal partfee. A general eltctlon la one 

which recurs ptx%oUUally at rated lntervalr es fixed by 

whtre8ea e~aLaltl~tionfao~t~t'rrires?~eae 

law, 

exigency OF special wtd outside the usual routine, such a8 to 

fill a vaoanoy fn o??fot. I.8 Am.Jur. 181, Slectlone, Sec. 5. 

In thle Betwe an eltotion 18~ school tnartets regularly held 

on a date ilxed by law lr a general tltotfon. The antutr to 

your mtooaad qutrtfom turne on Mmther tlkfr la the meanlrag of 

the tom 81) ursd in St&Porn 65 o? ArtiaI,t XVI, or whether lte 

meanly lr rertrioted to the ~lenn%al~general tltctfon f6r 

state and county ottioers. 

In Oretnwood v. efty of B1 Paso, 186 S.U.2d 1015 (Ttx. 

C1v.App.m tmt qutstlon fop aeairfon me whether the term 

"gtntral tltotionn a8 used ira a rtatutt rtqufrfpag that the application or mn indtpematmt candfgatt ior a city orffoe be 

slgntd by voter8 numbering flvt per oent o? the entire vote 

caet In the city *at the Jrst generaf tleceisn" meant the last 

general muri~cipal electlam or the la& general eleotlon for 

state and county officera, In reaching the eonalueion that 

the tom ae there wed had the latter meanlaag, the court Bald: 
"The words 'general election' would, standing 

al&e, mean the state-wide election held In purfiuanct of general 1Sw every two yearas which election IS ?or the atleotlon of state, dfStrICt, 

couaty and preolnot Q??lcera. This la a popular 

meaning o? the term. It Is a fundmental rule of 

statutory oonetructlon that unless some good mason 

appeSPa to the contFaPy, words uSed In the Statute 

would be eonatmed by the 6ourta In QcooPd%not with 

thtlr p6pul.a~ and ~nemlly mdtratood meanIn&" 

The CQUPt fudher obatrvtd, hwevero that the kw "&eneral 

elt&lonn may rmetlma r&m to the petiaddfeal elect&ma 

held by citle8 SOP the Se%SotfQBb of munlel~l s??lcs~8 (by. 

txtennlonn, this observation WoraPd SlSo apply ts the petiodlcal 

eleatlona held w'achool dlot~lfeta), and held that In the oath 

which the algmtra of the appllcs~tlon o? en 3.ndtpendtnt aandldate for a ofty office wire required to subaoribto,awmng 

that they were qualISted v&era "at the bet general tlootloa,* 

the ten, nmnt tha next gmmml olty tltotion. 

!fht phr8ae 'the gemwl election" aamltr a dl??erent 

connotetbm rpa the @maw "any gene2ml electlon.N The 

for6tr auggemts e+ apeolfla wneml electlen, an4 would ueumlly 

be takta to mean the one moat agaotXly known-the Novambw 

gtneml tltotlon ?or atate s8M 8ount.y citfcerr-unless ua& la 

sontext mguIxtng a dfiierent faat.trpretatlm. “Amy 6tWlW1 

eleetlon" fa not a0 lllftad fn oonnotatlor3. 

#bCtiQsL cQdtp tht @2?%8t, "fKl 6111 tltttfOFl8, ~EltXlBl, 

T?ww#mut the a 

or ppamar-y,* or aimalar woks la rP8qut8t~ used when he @p!J 

~rovlalom la lnttmiMd to apply to,evtly tm 0S election, by 

wbatevel, authority ft ~7 be held, end ohjar 

3 

Imcludta aloatlona held by e%tfor, #a&ml dletz%ote~ end her polltlaal 

aubM.vlrleor 0r the Btate ma well dr tleotlona for state and 

coumty QrrlatP8 0 Sees tar l aam@e, Artfolsa l.W, 2.010 3.03, 

3.04, 9.01, sad 9.U2, Vtmon~a ~~stfon Co&. 

AB used In Ststlom 65 of A&lole l(vI we think tkm krm 

"my gene-l, apealal OF pri85~rg election8 was lmttmdtd a8 an 

all-igclueive dtasrfptlon o? every lcfnd.o? l leotfon at uhloh 

roflt op trust under the laws of this Nate or o? 

tat88 sn voted or&. 

gtatR1 eltotlm ior rtMo and aoumty oSSfeer8, we think this 

lnterprttatlan la &efinlte~ aanSlrme4 

T 

Ar4%olt XI', &atlom 

11 oS the Comatlhtlom, oh%& wa8 rubrft e4 by the same 
- 

iionorable F'. T. G?%ham page 7 Oplnfon No. C43 

Legislature and adopted at the same election as the 1958 

amendment to Section 65 of Article XVI. The pertinent portion of Article XI, Section 11 reads ae followa: 

"Sec. 11. A Home Fiule City may provide by 

charter or charter amendment, and a city, town or 

village operating under the general lane may provide by majority vote of the qualified voters voting at an election called for that purpose, for a 

longer term of office than two (2) years for its 

officers, either elective or appolntlve, or both, 

but not to exceed four (4) years; provided, however, 

that tenure under Civil Service shall not be affected hereby. 

"Provided, however, I? any of such o??loera, 

eleotlve or appolntlve. shall announce their candldacy, or shall In fact become a candidate, In any 

general, apeclal or.prlmary election, for any office 

of profit or trust under the lawa of this State or 

the united States other than the oiflce then held, 

at any time when the unexpired term of the office 

then herd shall exaeed one (1) year, such announcement or such candidacy shall aonatltute an automatic 

realgnatlon of the oflice then held, and the vacancy 

thereby created shall be illled purfMInt to law in 

the same manner as other vaoanolts ror auah ofiloe 

ara filled." , 

We find In the second paragraph of this amendment a repetltlon, In Identical langukge, of the elections and offices referred to In Section 65 of Article XVI, and'lt must be preeumed that the lanfxuane was ,Intended to have like meanlnn In 

both amendments. ~olilngaworth County v. Allred, 120 Tez. 

473, 40 S,W.2d 13 m Garrett v. Mercantile Nat. Bank at 

Dtlllas, 140 Tex, 394, 

me offices for zE:omatic resignation under Article XI,-Section 11 are not limited 

to offices regularly filled at the general election for etate 

and county o??lcsra, for the section was manifestly dealgned 

to make candidacy for another city office at a city election 

constitute a reelgnatloa, as well as candidacy for other 

o??lcsa at electiona held by other political entitles. This 

necessarily must be true, because the phraee "other than the 

office then held" would otherwI,ae be meaningless, alnoe the 

%?flct then held" could be filled only at a olty eleotlon. 

I9elther oan this aeotlon be oonatrued as referring otix to 
. . - 

Honorable F. T. maham mm 8 apInion Ho. C- 43 

eleotlona for ollq7 osrioea, because no off loe “under the 

United Staterw 10 filled at a city eleotfon. CorMruing the 

two aeotione twether, we lust oonolude that in each section 

the lanlyage uaa Intended to embrace all elictfona, fncludlng 

electlona.for school truetebei Aooordfnglyo we are of the 

opinioathat candidacy 6r the count~~eoafseioner ror eohool 

trustee constituted an autoomtio reeignatlonof the:ofrfoe of 

oounty~ comil~aloner. 

Your~thlrd question, m-whether the oounty oattmiasioner 

continue8 to hold the offfce'~unti1 hle auooeeaor has been 

a pointed 'wae anmered~ln Attorney Qeneml'8 Opinion No. W853 (1962). That opinion held that under Article XVI0 Seatlon 17 of the Conatftution, providing that all officer8 Wall 

continue to perform the duties .of their offices until their 

auoceeaore &all be duly qualified, an ofiicbr.whose realgra- 

* tlon haa been effected by operation of the provirlon for automtio.reslgnatlon contlnuee to aerwe ao a "de jum" offioer '.. 

' until hla eueoea80r q~allfied for the orrice. 

The orrioeb of count ooaairrrfoner and trustee of 

an Independent oohoo I dlmot are not lnoompatlble, 

and may be held by the, Mae perron. 

Where a county oalo~ioher beoomerr a aandidate for 

the office of pw#tea~‘csf ;a111 Qkdqendent rohool district at a time when the &e~@red term of his 

office e%oeeda one year0 hlo oanbidaoy oomstitutes 

ann;rie& rwigaation of the ofrioe of county 

Tax; Coast. Art. XVI0 Sea. 65. He 

oontlauer to'eerve a# a “de fur@ abffoer until his 

ig;gaor lo a#po%nted and bar ~u8liiied for the 

. Tax. Con&. Art. S?X, Sea. 17. 

Tours *em tnxlp, 

WA- CAR6 

lrttorney Qeneral of Texea 

ma v e -6 

Htwy K. Wall 

Aerletant Attorney Qeneral 
Honorable P,. T. Graham k-we 9 

APPROVED: 

OPINION COMMITTEE 

W. P. Geppert, Chairman 

3. C. Davis, Jr. 

Edward ii. Hoffett 

J. Arthur Sandlln 

W. 0. Shultz 

APPROVED FOR BIE ATTORNEY OENBRAL 

BY: Stanton Stone 

opinion No. C- 43 

.