. .- 

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&w fdr 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 

“NO person #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)uerd Reserve, 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 Reserves 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.. 

f 106 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 oonaervrtlon dlatriot holda 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) 

'"After an exhaustive examination of'the 

authorities we hold that five elements are indlspensible in spy position of public employment, in order to make it a public office of 

a civil nature: (1) It must be create,d by the 

Constitution or by the legislature or created 

by a municipality or other body through authority conferred by the legislature; (2) It must 

possess a delegation of a portionof the sovereign power of government, to be exercised for 

the benefit of the public; (3) The powers conferred, and the duties to be discharged, must 

be defined, directly or impliedly, by the le - 

islature or through legislative authority; ( fi ) 

The duties must be performed Independently and 

without control of a superior power, other than 

the law, unless they be those of an inferior 

or subordinate office, created or authorized by 

the legislature, and by it placed under&e genera1 

control of a superior officer or body; (5) It 

must have some permanency and continuity, and 

not be only temporary or occasional."' 

See also the a,uthorities cited in our opinions 

Nos. o-518; and O-490, copies of each of which are enclosed 

herewith. 

An examination of the provisions of the Soil Conservation Act, (Arts 1939, 46th Legislature, page 7) and 

particularly Sections 5, 6, 7, 8 and 9, of that Act, convinces 

us that the supervisors of a soil conservation district hold 

civil offices of emolument. By the Act, such districts are 

constituted governmental subdivisions of this State and public bodies corporate and politic; governing body of the district is made to consist of five supervisors; a method by 

which such supervisors are selected is described in detail; 

the term of office of each supervisor is prescribed by the 

Act and the Act provides that each supervisor shall hold 

his office until his successor has been elected and has 

qualified; the Act provides that each supervisor may receive compensation for service on a per diem basis and the 

necessary expenses incurred for services other than those 

performed within the district; the supervisors are given 

authority to employ such officers, agents and employees, 
Mr. v. C. Marshall, Administrator, Page 4, (O-3395) 

permanent and temporary, as they may require, and to determine their qualiilcatlons, duties, and compensation and to 

delegate to such agents or employees as they may employ and 

select, such powers and duties as they may deem proper; and 

the powers and duties public in character, to be exercised 

by the supervisors 88 the governing body of the district, 

are specifically provided in great detail by the Act. It 

thus appears that eaoh of the criteria essential to the existence of a public office as set forth in the Woontana case 

above referred to, exists with respect to the supervisors 

of the soil conservation districts. 

Since we have determined that the supervisor of 

a soil conservation district holds a public office, within 

the meaning ol Article XVI, Section 40, and since itis 

manif'est that such office is civil rather than military in 

character, theily question remaining to be declded~ to determine the applicability of Article XVI, Section 40, to such 

office, is whether such civil office is one of emolument. 

The term "emolumentn means a pecuniary proftt, 

gain or advantage. 34 Texas Jurisprudence, page 349. The 

supervisors of the soil conservation districts are entitled, 

under the provision of the State Soil Conservation Ac,t, to 

receive compensation !'for servioe not to exceed Pour Dollars 

($4.00) for each day he shall be In actual attendance upon 

the duties of the office wtthin the district, not to exceed 

twenty (20) da s 

Four Dollars ( i 

in any one calendar year, and not to exceed 

4.00) a day and the necessary expenses lncurred for services other than within the distrlct;~.except 

by approval OS the State Board." It is our opinion that 

the compensation or remuneration provided by law for supervisors Is clearly a pecuniary prof'it, gain or advantage, 

and that such civil office is therefore an office of emolument, within the meaning of Article XVI, Section 40, of our 

Constitution. 

We trust that the foregoing will answer your question. 

Very truly yours 

ATTORWEY GENERAL,OF TEXAS 

/s/ R. W. Fair6hild 

APPROVED APR. 23, 1% 

/a/ Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

BY 

R. W. Fairchild 

Assiatant 

APPROVED 

OPINION 

COMMITTEE 

By B.W.B. 

RWFrLMrELB Chairman