. .-



### Mr. V. C. Marshall, Administrator

State 

### Soil Conserva tlon Board 6th Floor Professional 

### Bullcling Temple, Texas
Dear Sir: Opinion No. i-3395 Re: Right of State or oounty officer peld on salary basis to serve as supervisor in a Soil oonservatlon district and receive pey for such srrvloen. 1 Your 

### letter of April 8, 

### 1941, ‘requests the opinion of this department upon the following questionr

Would an 

### off’ioer of the State or of a oounty, who 

### is drawing a salary from the State dr fpbm’the county on a monthly baals, be eligible to Z%OelVe 

### p&y iihder the 

### provislona of the State So11 Conservatldn L&wfdr services 

### rendered es a supervisor In e soil oonservatlon dlatrlct?

Artlole XVI Seotlon 40, of th& State Constitution,
es amended November 6, 1932, read@ 

### es follower

“NOperson #hall hold or exerolse, at the
seme time, mars than on@

### Civil Offlae of emolument, rxorpt that 

### of Jurrtloe of 

### Peaoe, County Commisrloner, 

### Notary Pub110 and Postmaster, Offioer 

### of the National Guard, the Netlonal @m?d 

### Reserve, and the Offloere Relervr Corps of 

### the United States and 

### enlisted men of’ 

### the Natlonal clusrd, the National 

### Ctuard Reserve, and the Organlred Reserves of thr United State8; and retired ofilorrs 

### of the 

### United States Army, Navy, and Marlns oorp6, and ratlred warrant offioers, and retired enlisted men 

### of the United States Army, Navy, 

### and Marlne Corps, unless otherwise Upeoislly 

### provided herein. Provided, that nothing In this Constitution ahell be oonetrued to prohibit an offloer or enlisted man 

### of the Netlonsl Ouard, and the National G)uerdReserve, or an offloer In the Offloers Reserve Corps 

### of the United- .



### Mr. V. C. Marshall, Administrator, page 2, (O-3395)

Statea, or an enlisted man In the Organiaed Reser

### ves of the United States; or retired officers of the United States Army, Navy, and Marine Corps, and retired warrant offloers, and retired enllsted men 

### of the United States Army, Navy, and Msrine Corps, from holding in conjuntlon with such office any otherofflce or posltlon 

### 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.”
Under this Article of the Constitution, any of the offloes named In the exceptions mey be held In 

### conjunction with any other offloe, whether auah other office Is named in 

### the exceptions or not. 464, 

### 14 S. W. 365. 

### Qaal v:Townsend, 77 Tex. If neither of the two offloea of emolument are within the exoeptlons expressed In Article XVI, 

### Se&Ion 40, the two offloea may 

### not be held almultaneously yg one person. Odem

### v. Slnton Independent Sohool District
om. App.), 234 5. W. 1090; Pl?uitt v; Qlen‘Roae Inde endent Sohool Dlatrlot No. 1 126 Tax; 45 84 

### S. W (26) lOO! Torno v. Hoohatetler fClv. APQ,) ii21 9. w.‘623; 

### East&d County v. Haael, (Civ. App.), 2& S.~W. 518. Where 

### the two offioea oannot 

### be held by the same person, eooeptance and quellfloatlon for the aeoond offlca operatea Ipso faoto aa 

### e resignation of the former offloe. Peultt v. Glen Roae Independent Sohool Dletriot No. 1, supre.

Under Artiole 

### XVI, Seation 40, of the Constitution, if a aupervlaor in the soil aonaervatlon dlatrlot holds “of.. 

### f106 of emolument”
, auoh peraon oannot at the ~aame 

### time hold
or exerolae 

### 8 State or oounty offiae of emolument unless the other State or oounty offloe of emolument La 

### one whioh la named in the exoeptlon provided to Artlole XVI, Seotlon 40, of the Constitution, Slnoe, 

### under auoh olroumatenoea, the
aame peraon oould not 

### hold or 

### exeraiae both offloea, It neoeaaarily follows thrt he oould not reoelve the oompenaation attaohing to both. To determine the apglloablllty of Article XVI, Seatton 40, to your queatiOn0, therefore, It beoomea neoeaaary 

### to Oonaider whether a auperviaor in a a011 oonaer

### vrtlon dlatriotholda an “offloe of em01ument”

.

The orlterla for determining 

### whether a publio 

### employment la a public offloe of a 01~11 nature are 

### well stated In 

### the oaae 

### of the State of Montena, ex rel. Julius Barney 

### v. R. N. Hawklna, Seoretary of State, 257 Pac. 

### 411, 53 

### A. L. R. 583:Mr. V. C. Marshall,Administrator, Page ji (O-3395)

'"Afteran exhaustive examination of'the authoritieswe hold that five elements are indlspensible in spy position of public employment, in order tomake it a public office of
a civil nature: (1) Itmust be create,d by the Constitutionor by the legislatureor created by a municipalityor otherbody throughauthority conferredby the legislature; (2) It must possess a delegation of a portionof the sovereign power of government, to be exercised for the benefit of thepublic; (3) The powers conferred, and the duties to be discharged, must be defined, directly or impliedly,by the le - islature or through legislativeauthority; ( fi ) The dutiesmust be performed Independentlyand without control of a superiorpower, other than the law, unless they be those of an inferior
or subordinateoffice, created or authorizedby the legislature,and by itplaced under&e genera1 control of a superiorofficer or body; (5) It must have somepermanencyand continuity,and not be only temporaryor occasional."'

See also the a,uthorities cited in our opinions Nos. o-518; and O-490, copies of each ofwhich are enclosed herewith.

An examination of theprovisions of the Soil ConservationAct, (Arts 1939, 46th Legislature,page 7) and particularly Sections 5, 6, 7, 8 and 9, of thatAct, convinces
us that the supervisorsof a soil conservationdistrict hold civil offices of emolument. By the Act, such districtsare constituted governmental subdivisionsof this State and public bodies corporate and politic; governingbody of the district ismade to consist of five supervisors;a method by which such supervisorsare selected is described in detail; the term of office of each supervisor isprescribedby the Act and theAct provides that each supervisor shallhold his office until his successorhas been elected and has qualified; the Act provides that each supervisor may receive compensationfor service on a per diem basis and the necessary expenses incurredfor services other than those performedwithin the district; the supervisorsare given authority to employ such officers,agents and employees,Mr. v. C. Marshall,Administrator,Page 4, (O-3395)

permanent and temporary,as theymay require, and to determine 

### theirqualiilcatlons,duties, and compensationand to delegate to such agents or employees as theymay employ and select, suchpowers and duties as theymay deem proper; and the powers and dutiespublic in character, to be exercised by the supervisors88 the governingbody of the district,
are specificallyprovided in great detail by theAct. It thus appears that eaoh of the criteriaessential to the existence of a public office as set forth in theWoontana case above referred to, existswith respect to the supervisors of the soil conservationdistricts.

Sincewe have determined that the supervisorof
a soil conservationdistrictholds a public office,within the meaning olArticle XVI, Section 40, and since itis manif'estthat such office is civil rather than military in character, theily question remaining to be declded~ to determine the applicability of ArticleXVI, Section 40, to such office, iswhether such civil office is one of emolument.

The term "emolumentnmeans a pecuniaryproftt, gain or advantage. 34 Texas Jurisprudence,page 349. The supervisorsof the soil conservationdistricts are entitled, under theprovision of the State Soil ConservationAc,t,to receive compensation !'forservioenot to exceed Pour Dollars ($4.00)for each day he shallbe In actual attendanceupon the duties of the officewtthin the district,not to exceed twenty (20)da s Four Dollars (

i in any one calendaryear, and not to exceed 4.00) a day and the necessary expenses lncurred for servicesother thanwithin the distrlct;~.except by approval OS the State Board." It is our opinion that the compensation or remunerationprovided by law for supervisors Is clearly a pecuniaryprof'it, gain or advantage, and that such civil office is thereforean office of emolument, within themeaning of Article XVI, Section 40, of our Constitution.

We trust that the foregoingwill answer your question.
Very truly yours

ATTORWEY GENERAL,OFTEXAS
/s/ R. W. Fair6hild

APPROVEDAPR. 23, 1%
/a/ Grover Sellers

FIRST ASSISTANT ATTORNEY GENERAL 

### BY R. W. Fairchild Assiatant

APPROVED OPINION COMMITTEE By B.W.B. Chairman RWFrLMrELB