,A -‘-,

/. :. February 5, 1947

Hon. T. M. Trimble, First Assistant State Superintendent of Public Instruction Department of Education Austin, Texas A. 0. Opinion No. V-63 He: , County Commissioner, authority to serve as trus- , tee of independent school id district. .? Dear Sir: We refer ~youto your letter of recent date

wherein you requested an opinion of this departmenteon -r.i theYfollowing submitted question:

_ -- ., - : May a County Commissioner serve at

the same time as trustee of-an independent school district? Article XVI, Section 40, Constitution of Texas, reads as follows:

"No person shall hold or exercise, at : the same time, more than one civil office of emolument, except that of
. . . county commissi0ni.w
. . . I* Dual office holding is expressly forbidden by Section 4O;Article XVI of the Constitutionwhere both officesare civil offices of emolument. Dual office holding is forbidden to an extent at.least by Section 33 of Article XVI wherein the accounting'officersof the State are forbidden to issue or pay a warrant upon the Treasurer for the payments of salary or compensation to a civil officer, who at the same time holds another office of honor. trust, or profit under the United States or the State of Texas.

The Constitutional prohibition against the holding of more than ~oheoffice of emolument (Article XVI, Section 40) isinapplicable to the question;under consideration for tvio reasons: (1) The office of County Cmmissiocei i; expressly excepted; (2) As the trustee serves without compensation, his is not an.- Hon. T. M. Trimble, Page ,2,~v-6)

office of emolument. State v. Martin, 51 S. W. (2d) 815; Attorney General Opinion o-3308. And since neither a County Commissionernor a trustee of an in-
. dependent schooldistrict are officers to be paid out .ofthe State Treasury, we do not believe Article XVI, Section 33 of the Texas Constitution is violated under the facts submitted. Attorney General Opinion Ro. O-3308and O-3352.

Bowever, it is aiso a fundamentalrule'of law that one person may not hold at one time two offices, the duties of which are incompatlble~, and this princi@s applies nhether or notthe office is.named in the exception contained inArticle. XVI, Section 40, Bieacourt V. Parker, 27 Texas 558; State v. Br~inkerhoff,,66 Texas 45; Thomas v.Abernathy Countg~Line IndependentSchool District; 290 3. W; 152; Attorney General OpinionsNumbers O-4957 and O-5145.-'Pruitt-v. Glen RoseIndependent School District, 84 S. W. (Zd) 1004.

This principle ef flaw,incompatibilityof of- !&es, is expressed clearly-.in 22 R. Ct L. 414, par. 56; we quota from Knuckles v. Eoard of Educationof Bell. County, (IZentucky) 114 3. W. (2d) 511, at page 514., as follows:

We have considered the statutes relative to the respective duties incumbent upona county commissioner and a 'trusteeofan independentschool district, and we cati conceive of no sound basis upon which it

"One of themost important testsas to whether officesare -incompatibleis found in the principle that.the incompatibility is recognized whenever one is subordinate to the other in some ofits importantand principal duties, or iS subject to supervisionby the other, or where a contrarityand antagonism would result in the attempt by oneperson to discharge the duties of both. Under this<principletwo officesare incompatiblewhere the incumbent of one has the power to remove the incumbentof the other, though the contingencyon which the power may be exercised Is remote,and It also exists where the incumbentof one officehas the power of appointment asto the other office, or to audit theaccounts of anbthzr, or to exercisea supervisionoveranother.I *.

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### Hon. T. hf.

Tritible,

Page 

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may be said that their respective officesare lncompcltible.We have been unable to findany statute providin$ that either office isaccountable to, under the dominion of, or subordinate to then other, or which provides that~ either office .hasa right to interferevith the other in the performnce of any official duty. Nor have; vs been appraised of’ any reason why the duties of ‘acounty commissionerwould be inconsistentor in conflictwith the duties OS a tmstee of an independent school district.

It is our opinion’ therefore that the two. offic’esin question are not’incompatibie,and that your submittedquestion should be, and is,answered in the affirmative.

,_ smm

One’personmay hold at the same time both the offices of county commissionerand trustee. of an independent school district, the said offices being not incompatible. Very truly yours, ATTORRRY GRNERAL OF TEXAS .k..



## BY< $?y&$&) :...’ :., Chester

### E. Ollieon

Aseistatlt mo:mtmrj APPROVE3 PRB. 

### 5, 1947

ATTORW GERERAL OF TEXAS APPROVRD OPWIOB COMMITTRB BY BWR , CRAIRRAN 1

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