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OENlOrnAL July 27, 1953 1
Hon. .Archle 8.,~HcDonald ‘~;g& Opinion No. S-74 County Attorney ,&ore County Re: Ability of the county to Dwau, Texas makea vallcl tax levy when one county commissioner is absent beca:use he is in the Dear Mr..McDonald: armed forces.

You have re,queated the opinion of this office ,conoernlng the validity of a tax levy by Commi,asioneraI Court while one Commissioner 18 absent because of his induotlon into the active military servicQ of the United States, and &e'to the validity of paying his salary during his absence.

You’have adriined us that the Comml#aloner in question was industed Into a reserve component of the ArmedForces, a&distinguIshed from a regular component.
that t Art~icle 2343, Vernon’s Civil Statutemr, stat.ea

‘Any three membersof the said court, including the county judge, ahall constitute a quorwl for the trfins,aation of any business,

,t OSlevu.lra a oount~ ta+” (Emphaeis
Article 2354, Vernon’fi Civil Statutes, provides:

Of like mavwt 19Article 7045, VernonQ Civil Statute& The&eprovisIons are mandatory that all memberfb of the CPmmlnaLonercr’Court muatattend, the regular B,,emlon OSths c.ouPt In which any oount,y tax is l,e,v,Led.Hon. Archle S. McDonald, page 2 (S-74)

Free v. Scarborouprh, 70 Tex. 672, 8 S.W. 490

, 41 S.W.2d 714 (Tex.Clv.App. (1888"j i 1,931 1477 (1939); Att’y Gen. op. O-4335;

Section 40 of Article XVI of the Const&tutlon of TexaB provide6i that. one hol,dlng a civil office of emolument under the State of Texas does not vacate the office bu becomlna a memberof a reserve unit of the

. Hamilton v. GeniOp. O-b2

“To our minds,, it is illogical to contend that the construction we have given these ccnstltutlonal provisions would make it imposelble for a county commissloner~8 court to fix tax rates, if a memberthereof should be absent for the samereason, Judge Dixon.was absent, .because Article 7045 of our Civil Statutes requires all membersof ,such courts to be present whencounty tax rates are fixed. Certainly a statute cannot override the ConstltutlonL Wherethe Constitution permits a memberto be abs,ent,, a atatute cannot require him to be present. It follow~ti that in such iw,$ance Article 7045, suwa, cannot be applied as to the memberabsent by constitutional authority.” Cramer v. Sheppard, ,supra, p. 155. Sinc,e Sectlon40 of Article XVI of the Texas Constitution permits a member of commissioners1 court to be a memberof a reserve unit of the Unlted States armed furces almultaneoualy, and his presence Is required under federal law outside the limits of his county. then the provisions of Articles 2343, 2354 and 7045, V.C.S., cannot require him to be present at a sesalon of the court in wh&cha county tax ia levied, and thes,e statutory reauirements therefore do not aonlv as to the memberabsent by~con#tltut&on@l suthority, -$ramer InBoftW aa Att'y Qene OP, O-4389 (194 the holding herein It la expressly ,oHon. Archle S. McDonald, page 3 (b-74)

Even though he is absent from the county in military service the oommlsoioner I$ entitled to his 

### cLalary,Salaryand emolumentmr are Incident to the ta th,e office. and not to ItEe,o~acupatlon or the per of offlc,lal i¶Ihle#k+ .Markure.l.ll v.,.,Galpe t. 273 (Tex&lv.App~, 1943, error ref .),,; i&8$' 0::: &! :f62 45, aupra.

Articles 2343, ,?3,54: and 7045, 

### V.C.S., donot require a commis,eioner to be present at a term of commiaaloners court at*which a county tax ia levied if the Texas ConstlW&Ion and 

### fe,derar law permit8 his absence in military aer&oe In a reserve component. During his absence he is entitled to the salary of his office*

kPPROVED: Yours very truly, JOHN BEN

### SIiEiPPEFiD Attorney General J, C, Davis, Jr. Cg'untyAffalre Divi,slon Wi,llis EnGresham Reviewer BY
Robert S. Trottl First Aaalatant 

### JohnBenShepperd Attorney 

### Qtnkral BEL:am