ihs .Y~p::::rrn 

AUSTIN ~~.TExAs~ , JOEIN BEN s3EIcPPE~ID Az-x01Mls1 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 make a 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,asionera I 

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 

Armed Forces, a& distinguIshed from a regular component. 

that t 

Art~icle 2343, Vernon’s Civil Statutemr, stat.ea 

‘Any three members of the said court, 

including the county judge, ahall constitute 

a quorwl for the trfins,aation of any business, 

,t OS levu.lra a oount~ ta+” (Emphaeis 

Article 2354, Vernon’fi Civil Statutes, provides: 

Of like mavwt 19 Article 7045, VernonQ Civil 

Statute& The&e provisIons are mandatory that all memberfb of the CPmmlnaLonercr’ Court muat attend, the regular 

B,,emlon OS ths c.ouPt In which any oount,y tax is l,e,v,Led. 
Hon. Archle S. McDonald, page 2 (S-74) 

Free v. Scarborouprh, , 41 S.W.2d 70 Tex. 714 672, (Tex.Clv.App. 8 S.W. 490 (1888"j 1,931 i 

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 member of 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 member thereof 

should be absent for the same reason, Judge 

Dixon. was absent, .because Article 7045 of 

our Civil Statutes requires all members of 

,such courts to be present when county tax 

rates are fixed. Certainly a statute cannot 

override the ConstltutlonL Where the Constitution permits a member to 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 

member absent 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 member of 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&ch a county tax ia levied, and thes,e statutory reauirements therefore do not aonlv as to the member absent 

by~con#tltut&on@l suthority, -$ramer 

InBoftW aa Att'y Qene OP, O-4389 (194 

the holding herein It la expressly ,o 
Hon. 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, Salary and 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., 

do not 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'unty Affalre Divi,slon 

Wi,llis En Gresham 

Reviewer 

BY 

Robert S. Trottl 

First Aaalatant 

John Ben Shepperd 

Attorney Qtnkral 

BEL:am