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~oardofSchool Trustees and member oflocal community committee, AgriculDear Sir: tural Adjustment Administration. Your reqwast for .anopinion as to whether one person, at the same time may ser.ve as amember of the county board of school trustees and as amember of a local community committee operating under and suprrvised by the United States Department ofAgriculture through the Agricultural Adjustment Administration, has been received and carefully considered by us.

The determination ofthenquestion submitted must be grounded upon an interpretation ofthe provisions of the Texas Constitution. Section ,12ofArticle 16of 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 ofthem, .or under any foreign power, shall be eligtble as a member ofthe LegMature, o,rhold or e%ercise any office of profit or trust under this State.” Section 33 ofArticle 16: “The Accounting Officers of this State shall .;either draw nor pay awarrant upon the Treasury in favor ofany person, for salary or compensation as agent, officer or appointee, who holds at the same time any other office or position of honor, trust orHonorable J. A. Amis, Jr., page 2

profit, under this State or the United States, except as prescribed inthis Constitution. * * *.” The pertinent provision of section 40 ofArticle 16 is as follows:

‘No person shall hold or exercise, at the same time, more than one civil office of emolument, except that ofjustice ofthe peace, county commissioner, notary public and postmaster * * * unless specially provided herein * * *

.” The election, qualification, service, duty and compensation of members ofthe 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 bywarrants drawn on order ofthe County Superintendent and signed by the President ofthe 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 ofAgriculture was authorized to set up such regulations as might be required in administering the Agricultural Adjustment Administration program. Pursuant to such delegation of authority, inthe Articles ofAssociation, under which the various counties operate,‘provision is made for county and local committeemen to be elected by producers inthe county upon their receiving amajority ofthe votes cast for the position towhich they are elected. Local commttteement are elected to serve from January 1to 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 donot 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 ofAgriculture, 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 inthe reported cases, butthey are substantially ofthe 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, bywhich, for a given period, either fixed by law, or enduring at the pleasure ofthe creating power, an individual is invested with some portion ofthe sovereign function ofthe government, to be exercised by him for ‘the benefit **of** the public.’ The individual so invested is apublic 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 thenfollowing 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 ofthe duty. But the taking ofthe 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 ofthe office. * * *,Ifa 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 onthe duties pertaining to his station without any contract defining them, ifthose 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 anofficer. * * *~”Honorable J. A. Amis. Jr., page 4

ment: The **same** authority contains the following statey ‘A man is not the less apublic officer where his authority is confined to narrow limits; for it is the duty.ofhis office and the nature of that.duty which make him an officer, a¬ the extent of his authority.’ See Me&em onPublic Officers, § 9.”
inthe 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 bywhich, for a given period either fixed by law or end,uring at the pleasure ofthe creating power, an individual is invested with some.,portion ofthe sovereign functions ofthe governm~ent to be exercised by him for the benefit of the public.” From the case of State ofMontana, 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 ofthe authorities, we hold that five elements are indispensable inany position of public employment, in order to make itapublic office of a c%vilnature: (1) Itmust be created by the Constitution or by the Legislature or crematedby amunicipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of aportion ofthe sovereign power of government, tobe exercised for the benefit ofthe 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 andwithout control of a superior power, other than the law, unless they be those of an infereior or subordinate office. createdHonorable 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 havessome permanency and continuity, and not be only temporary or occasional.” That a member ofthe county board of school trustees holds an “office”; that it is an office of ‘profit or trust”; also an “office or position ofhonor, 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.), ~290S. W. 152; Commissioners’ Court of Limestone County v. Garrett (Corn. App.). 236 S. W. 970; 34 Tex. Jur. 331 an~dcases cited under § 7.

With the exception ofthe taking ofan 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 ofour constitutional inhibitions. According to Mechem’s statement, -quoted with approval by our Commission ofAppeals inLimestone Coun- .tyV. Garrett, supra, the taking of an oath is not an indispensable criterion, all the other elements being present.

1939: As was said inour opinion No. O-490 onMarch 17.

‘The restraint against aperson exercising or holding more than one civil office of emolument might appear to be amanifestation of a superabundance of caution on the part ofthe framers of the constitution, where the offices are not ofmajor importance, or ofhigh financial remuneration, as is the present case. On the other hand, said prohibition can amount to aprotection offundamental rights and liberties, and a bulwark of democratic institutions and principles. Consequently, regardless ofthe 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 aIocaI 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