Honorable J; A. Amis. Jr: Opinion No. O-2226 

County Attorney 

Rains County 

Emory, Texas 

Re: Holding two offices--constitutional provisions construed-- member, County 

B~oard of School Trustees 

and member of local community committee, AgriculDear Sir: 

tural Adjustment Administration. 

Your reqwast for .an opinion as to whether one person, at the same time may ser.ve as a member of the county 

board of school trustees and as a member of a local community 

committee operating under and suprrvised by the United States 

Department of Agriculture through the Agricultural Adjustment 

Administration, has been received and carefully considered by us. 

The determination of then question submitted must 

be grounded upon an interpretation of the provisions of the Texas 

Constitution. Section ,12 of Article 16 of the Constitution reads as 

follows : 

“No ~member of Congress, nor person holding 

or exercising any office of profit or trust, undrr the 

United States, or either of them, .or under any foreign power, shall be eligtble as a member of the LegMature, o,r hold or e%ercise any office of profit or 

trust under this State.” 

Section 33 of Article 16: 

“The Accounting Officers of this State shall 

.;either draw nor pay a warrant upon the Treasury 

in favor of any person, for salary or compensation 

as agent, officer or appointee, who holds at the same 

time any other office or position of honor, trust or 
Honorable J. A. Amis, Jr., page 2 

profit, under this State or the United States, 

except as prescribed in this Constitution. * * *.” 

The pertinent provision of section 40 of Article 

16 is as follows: 

‘No person shall hold or exercise, at the 

same time, more than one civil office of emolument, except that of justice of the peace, county 

commissioner, notary public and postmaster * * * 

unless specially provided herein * * * .” 

The election, qualification, service, duty and 

compensation of members of the county board of school trustees is prescribed by Title 49, Chapter 11 of the Revised Civil Statutes of Texas, 1925. as amended (Articles 2676 et seq., 

Vernon’s Annotated Texas Statutes.) Such members serve for 

a definite term, receive compensation on a per diem basis payable out of the State and County Available School Fund by warrants drawn on order of the County Superintendent and signed 

by the President of the county board, and take the official oath 

of office. 

By Act of Congress, Public No. 430. Se.venty Fifth 

Congress. Chapter 30. Third Session, H. R. No. 8505, Title 1. 

Section 101. the Secretary of Agriculture was authorized to set 

up such regulations as might be required in administering the 

Agricultural Adjustment Administration program. Pursuant 

to such delegation of authority, in the Articles of Association, 

under which the various counties operate,‘provision is made 

for county and local committeemen to be elected by producers 

in the county upon their receiving a majority of the votes cast 

for the position to which they are elected. Local commttteement are elected to serve from January 1 to December 31 of 

the current year, or until their successors have been duly elected. 

Local committeemen are not required to take an oath of office; 

they do not receive a stipulated salary, but are paid at a certain 

rate per diem for the days which they serve. (This inform,ation 

furnished per l,ettei, E. N. Holmgreen, Administrative Officer in 

charge, Agricultural Adjustment Administration, United States 

Department of Agriculture, College Station, Texas.) 
Honorable J. A. Amis, Jr.., page 3 

Under the title “Public Officers”, Texas Jurisprudence gives the following statement~df the law: 

“Many judicial definitions of ‘public office’ 

are to be found in the reported cases, butthey are 

substantially of the same import. It is said to be 

a right to exercise a public function or employment 

and take the fees and emoluments belonging to it; 

‘a publi: station or employment conferred by the 

appointment of government’; and ‘the right; authority 

and duty created and conferred by law, by which, for 

a given period, either fixed by law, or enduring at 

the pleasure of the creating power, an individual is 

invested with some portion of the sovereign function 

of the government, to be exercised by him for ‘the 

benefit of the public.’ The individual so invested is 

a public officer. He is a person who exercises some 

functions of the government -- one who is commisl 

sioned or authorized to perform any public duty.” 

(34 Tex. Jur. 322). 

.From the case of Commissioners Court of Limestone County vi Garr’ett, (Corn. App.) 236 S. W. 970 at p. 972. we 

take then following quotation from Mechem on Public Officers: 

“Public officers are usually required by law 

to take the oath of office, and this fact goes far in 

determining the character of the duty. But the taking of the oath is not an indispensable criterion, and 

the office may exist without it, for, as has been said, 

the oath is a mere incident, and constitutes no part 

of the office. * * *, If a duty be a continuing one, which 

is defined by rules prescribed by the government, and 

not by contract, which an individual is appointed by 

government to perform, who enters on the duties pertaining to his station without any contract defining 

them, if those duties continue though the person be 

changed. it seems very difficult to distinguish such a 

charge or employment from an office or the person 

who performs the duties from an officer. * * *~ ” 
Honorable J. A. Amis. Jr., page 4 

ment: 

The same authority contains the following statey ‘A man is not the less a public officer 

where his authority is confined to narrow limits; 

for it is the duty .of his office and the nature of 

that.duty which make him an officer, a¬ the 

extent of his authority.’ See Me&em on Public 

Officers, § 9.” 

in the Supreme Court case of Kimbrough v. Barnett, 93 Tex. 310, 55 S. W. 122, is the following: 

‘Public office is the right, authority, and 

duty created and conferred by law by which, for 

a given period either fixed by law or end,uring at 

the pleasure of the creating power, an individual 

is invested with some.,portion of the sovereign 

functions of the governm~ent to be exercised by 

him for the benefit of the public.” 

From the case of State of Montana, ex rel. Julius 

Barney v. R. N. Hawkins, Sacretary of State, ,251 P. 411. 53 

A. L. R. 583 (1927) we quote: 

“After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in 

order to make it a public office of a c%vil nature: 

(1) It must be created by the Constitution or by 

the Legislature or cremated by amunicipality or 

other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of 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 Legislature 

or through legislative authority; (4) the duties must 

be performed independently and without control of a 

superior power, other than the law, unless they be 

those of an infereior or subordinate office. created 
Honorable J. A. Amis, Jr., page 5 

or authorized by.the Legis,latpre, Andy by it 

placed under the general control of a superior 

officer or body; (5) it must haves some permanency and continuity, and not be only temporary 

or occasional.” 

That a member of the county board of school 

trustees holds an “office”; that it is an office of ‘profit or 

trust”; also an “office or position of honor, trust or profit” 

and a “civil office of emolument” is not open to question. 

See Hendericks v. State, (Civ. App.) 49 S. W. 705; Thomas v. 

Abernathy County Line Independent School District (Corn. App.), 

~290 S. W. 152; Commissioners’ Court of Limestone County v. 

Garrett (Corn. App.). 236 S. W. 970; 34 Tex. Jur. 331 an~d cases 

cited under § 7. 

With the exception of the taking of an official 

oath, it appears to us that a member of a local community 

committee meets the presciibed essentials as an “officer” 

and holds an ‘office” within the contemplation of our constitutional inhibitions. According to Mechem’s statement, -quoted 

with approval by our Commission of Appeals in Limestone Coun- 

.ty V. Garrett, supra, the taking of an oath is not an indispensable 

criterion, all the other elements being present. 

1939: 

As was said in our opinion No. O-490 on March 17. 

‘The restraint against a person exercising 

or holding more than one civil office of emolument might appear to be a manifestation of a superabundance of caution on the part of the framers of 

the constitution, where the offices are not of major 

importance, or of high financial remuneration, as 

is the present case. On the other hand, said prohibition can amount to a protection of fundamental 

rights and liberties, and a bulwark of democratic 

institutions and principles. Consequently, regardless of the personalities, offices and compensation 

involved, the constitutional mandate must be strictly 

obeyed.” 
Honorable J. A. Amis, Jr.. page 6 

You are therefore advised that in our opinion 

one person may not, at the same time, hold the office of 

county school trtitee and act as a IocaI community committeeman under the Agricultural Adjtistmcnt Act. 

Yours very truly 

A-I’TORNEY GENERAL-OF. 

TEXAS 

By /s/ Benjamin Woodall 

Assistant 

APPROVED MAY 23. 1940 

/s/ Gerald C. ‘Mann 

ATTORNEY GENERAL OF’ TEXAS 

BW:jti:da :. 

,.. 

.&PROVED OPINLON 

COMMITTEE ‘. 

BY BWB 

Chairman