E NEY GENERAL 6F TEiXAS

Honorable Joseph C. Ternus Opinion No. WW-1110 CountyAttorney SanPatrlclo County Sinton, Texas Re: Whether County School Trustees are elective county andprecinct officers as used in Article XVI, Section Dear Mr. Ternus: 64 of the Constitution.

Weare in receipt of your letter In which you ask for an interpretation of Article 2676of Vernon's civil Statutes, as amendedby Acts of the 55th Legislature, Regular Session, 1957. In your letter you stated that it wasyour opinion that that portion of Article 2676 which relates to the terms of office of a county school trustee, providing for terms of office of twoyears, is unconstitutional, being In conflict with Section 64of Article XVIof the Texas Constitution.

Section 64of Article XVIof the Texas Constitution provides as follows:

"The office of Inspector of Hides and Animals, the elective district, county and precinct offices which have heretofore had terms of twoyears, shall hereafter have terms of four years; andthe holders of such offices shall serve until their successors are qualified." Article 2676of Vernon's Civil Statutes states as follows: "Section 1. Thegeneral managementand

control of the public free schools andhigh schools in each county, unless otherwise provided by law shall be vested In five (5) county school trustees elected from the county, one (1)Honorable Joseph C. Ternus, page 2 (WW-1110)

of whomshall be elected from the county at large bythe qualified voters of the county and one (1) from each Commissioner’s Precinct bvthe auallfied voters of each Commlaslon&~s Precinct, whoshall hold~office for a term of two (2) years. Thetime for such election shall be the first Saturday in April of each year; the order for the election of county school trustees to be madeby the county judge at least thirty (30) days prior to the date of said election, andwhich order shall designate as voting places within each common or independent school district the samevoting place or places at which votes are cast for the District Trustees of said commonandIndependent school districts, respectively. Theelection officers appointed to hold the election for Dlstrlct Trustees in each of said school districts, respectively, shall hold this election for county school trustees.

“Sec. 2. It shall be novalid objection that the voters of a Commissioner’s Precinct are required by the operation of this Act to cast their ballots at apolling place outside the CommisslonerIs Precinct of their residence.

“Sec. 3. Eachyear there shall be elected alternately two (2) county school trusteee and three (3) county school trustees In each county. All vacancies shall be filled by the remaining trustees. All elections heretofore held in accordance with the foregoing provisions of this Act are hereby In all things validated andall truateea so elected shall continue to hold office until the expiration of the term for which they were originally elected. ” (Emphasis added) There can be no question that a county school trustee Is holding a public office. InVolume 34, Texas Jurlsprudence at page 322, It Is said:

“Manyjudicial definitions of a ‘public office’ are to be found In the reported case8I

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Honorable Joseph C. Ternus, page 3 (WW-1110)

. but they are substantially of the sameImport.

It is said to be a right to exercise apublic function or employment andtake the fees and emoluments belonging to It; ‘a public station or employment conferred by the appointment of government; (and ‘the right, authority andduty created and conferred by law, bywhich, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an lndividual Is invested with someportion of the sovereign functions of the government, to be exercised byhimfor the benefit of the public. I Thelndividual so Invested is a public officer. Heis a person whoexercises somefunctions of the government - one whois commlasloned or authorized to perform anypublic duty. ” Also see Klmbrou

Knox?. v. Burnett, 93Tex. 301

Johnson, 141 S.W.2d 69655 S.W. 120, 122 (1900), and error ref. ) (Clv.App. 1940,

Article 2683,Vernon’s Civil Statutes, and 37Tex. Jur. 930 refer to such trustee as being a coul;fty school trustee. It follows that holding a “public office In this capacity classifies such person as a county officer.

At the Qeneral Election In November., 1954, the voters adopted Section 64of Article XVIas part of the Texas Constitution, which, in effect, changed the terms of certain offices In Texas from twoto four years. These offices included the Inspector of Hides andAnimals, the elective district, county andprecinct officers which theretofore had terms of twoyears.

Prior to the amendmentof Article 2676by the Legislature In 1957, said Article provided that county school trustees were to hold this office for a term of twoyears andthat elections were to be held each year, andthat they shall be elected alternately, two county trustees andthree county trustees. TheLegislature In 1957 carried over into the amendedstatute this sameterm of office. This, In our opinion, was unconstitutional as it violated Section 64of Article XVIof the Texas Constitution.

TheLegislature, In amending Article 2676, Vernon’s Civil Statutes (Acts 55th Legislature, 1957, ch. 473,p. 1383)provided the following savings clause:. ,

Honorable Joseph C. Ternus, page 4 (Ww-1110)

"If anyprovisiona pllcatlon the'eof to-any of this Act or the apperson or circumstances is held lnvalld, such lnvalldlty shall not affect other provisions or applications of the Act which can be given effect without the Invalid provision or application, andto this endthe provisions of this Act are declared to be severable." The SupremeCourt of Texas held in Jordan v. Crud&n&- ton, 149Tex. 237, 231 S.W.2d 641 (1950), at page b46:

"Asa result of striking from the Act the three provisions above discussed, mustthe Act as awhole be condemned? Wehave concluded that that result does,not follow. TheAct provides that 'If any Section, clause or part of this Act shall be held invalid, it Is hereby declared to be the Intention of the Legislature that the remainder thereof not held invalid shall remain in effect, andthe validity of the remainder of this Act shall not be affected therebyaV Section 15. Since the above provisions of the Act violate manda- 'tory andexclusive provisions of the Constitution, It is our duty to carry out the express Intent of the Legislature by substituting the constitutional provisions for the provisions of the Act which they condemn, with the result that jury trials In the court in question shall be hadbefore juries of twelve men. Normanv. Giles, Tex.Sup., 219 S.W.2d 678; Greene v. Robison, 117Tex. 516, 8 S.W. 2d 655. With those constitutional provisions read Into the Act it is our conclusion that It is a valid exercise of the legislative power; that is to say that none of the objections urged bythe respondent is valid." Because of the above mentioned savings clause, together with the holding of the SupremeCourt of Texas in the last cited case, It Is our opinion that only that portion of Article 2676, Vernon's Civil Statutes, which pro;Cl;;&l;or twoyear ,terms of office la unconstitutional. necessarily follow that these elections would be held every twoyears rather than every year, andthe terms of office are four years rather than two.I

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Honorable Joseph C. Ternus, page 5 @W-1110)

SUMMARY

That portion of Article 2676,Vernon's Civil Statutes, as amended, which provides that the term of office of a County School Trustee Is for twoyears, la unconstitutional as being in vlolation of Section 64of Article XVIof the Texas Constitution.

Yours very truly, WILLWILSON Attorney General of Texas

LFP:am:zt Leon F. Pesek Assistant

APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman * *. Virgil Pulllam

L. P. Lollar Maston Courtney, Dudley McCalla RHVIHWHDFOR

THEAT'IDRNHY

GENERAL BY: MorganNesbitt