### THEATTORNEYGENERAL OF TEXAS

Honorable J. W.Edgar Commissioner OfEducation Opinion No, WW-1364 Texas Education Agency Re:
i Austin, Texas Whether Section 

### 33of Article XVI or any other provision of the Texas Constitution or statutes prohibits a University Professor or Lecturer from receiving their pay from

i the University while holding the position of a trustee of an independent school district, I Dear Mr. Edgar: and other questions. Youhave requested an opinion from this office upon the following questions :

*Ia D Does Section 

### 33, Article XVIor any other provision of the Texas Constitution or statutes prohibit such a Professor or Lecturer from receiving their payfrom TheUniversity of Texas, while holding an office or position as amemberof a Board of Trustees of an independent school district? That is to say, the exception as to reserve and retired officers, does it have application here?

“b., their Should the wfves continue to serve9 fs term for the unexpired term for which their husbands were elected or only until the next regular trustee election?f ’ Thefacts surrounding the questions posed reveal that a ~, full-time Professor at the University of Texas anda Lecturer in Business Lawat the University of Texas were both elected to serve ‘: as membersof the Board of Trustees of an independent school district D Thequestion then arose as to whether, pursuant to Article XVI, Section 

### 33 of the Constitution of Texas, the payof the Professor and Lecturer at the University of Texas would be forfeited ~, upon their servfng as trustees of the Independent school district. This resulted in the Professor and the Lecturer resigning from and refusing to qualify for the office to which they had been elected.

~‘~ TheBoard of Trustees thereupon appointed the wffe of the Professor and the wife of the Lecturer to ffll the vacancies on the Board of Trustees of the independent school district created by. .

Honorable J. W.Edgar, page 2 (WW-1364)

the resignation and/or failure t,oqualify of the Professor and the LecturerBo TheProfessor is an officerof ‘theRetired Reserve of the United States Navyand the Lecturer is amemberof the United States ArmyReserve.

Section 33 of Article XVIof the Constitution of Texas provides that:

“The Accounting Officers of this State shall neither drawnor pay awarrant uponthe Treasury in favor of any person, for salary or compensation as agent, officer or appointee, whoholds at the sametime any other office or position of honor, trust or profit, under this State or the United States, except as prescribed in this Constitution. Provided, that this restriction as to the drawing and paying of warrants upon,the Treasury shall not apply to officers of,the National Guardof Texas, the National GuardReserve, the Officers Reserve Corps of the United States nor to enlisted menof the National Guard, the’ Nakonal GuardReserve the Organized Reserve of the United States, nor to ’retired officers of the United States Army, Navy, and Marine Corps, and retired warrant officers and retired enlisted menof the United States Army, Navy; and Marine Corps0t8 In the case of S.W.2d 147‘(1943) 9the Su 140Texo 271 167 s had before it for consideration the provisions of Section 33 of Article XVIof the Constitution of Texas as well as certain other provisions of the Constitution and in its opinion the Court held that:

“Wethink the people, by the adoptfon’of the amendments intended to avoid the inhibitions contained in the then existing Constitution w%threspect to dual office holding. This conclusion is fnescapable, in our Judgment, whenweconsider the reasons for submftting Sections 33 andk0 to the people for their approval, In selecting the classes to be favored by the amendments, the National Guard, the National GuardReserve, and the Officers Reserve Corps’of the United States amongothers, were included. Theinclusion of ?hese classes encouraged the citizens of this State to render a patr%otfc service to the State andthe Nation byqualifying themselves for military service, 0., Thus it appears that,‘by the adoption of these amendments, the people consfdered it to be in the interest ofHonorable J. W.Edgar, page 

### 3 (WC1364)

the public to favor the classes named, byallowing themat the sametime to hold civil offices under the State. Thepeople nodoubt considered, when they adopted these amendments that the publfc”s welfare would be better served by allowing these classes to serve the State andNation in the military units named,while at the sametime rendering service to the State as civil officers.w It is apparent that the intent of the last sentence of Section 

### 33 of Article XVIof the Constitution of Texaswas merely to allow individuals whoare membersof the military units namedin Section 

### 33 of Article XVIto also be able to act as an agent, fY;Yking officer or appointee of the State without forthe cornensation that this office or position mayproWeare oPthe opinion, however that meremembership in one if the military units designated in Section 

### 33 of Article XVIwould not serve as a complete removal of all the restrictions imposed by Section 

### 33 of Article XVI.

While Section 

### 33of Article XVIwould allow anindividual to serve as amemberof one of the designated military units and also drawa salary or compensation from the State, this provision of the Constitution of Texas would not allow an individual to serve as amemberof one of the designated mllitary units andalso drawa salary or compensation from the State, andat tha sametime hold another office or position of honor, trust or profit under 

### theState or the United States other than being amemberof one of the desfgnatad military ties.

In tineinstant case there would be no conflict with Section 

### 33 of Article XVIfor the Professor or Lecturer to receive pay from the State for their services rendered at the kfversity of Texas and at the sametime be amemberof one of the military units designated in Section 

### 33of Article XVI. However, membership 

### inone of the deslbgnated military units would not serve as a basis for allowing a Professor or Lecturer whois rece%ving compensation from the State for services rendered at the University of Texas to at the sametime hold another position or office of honor and trust other than as a memberof one 

### of the designated military units.

Thelast sentence of Section 

### 33 of Article XVIdoes not exempt certain fndfviduals from the provisions of Section 

### 33 of Article XVI; %tmerely provides that those individuals serving in a position of honor, trust or profit as a memberof the designated military units will be allowed to serve in such capacity without the forfeiture of compensation from the State if he happens to be an agent, State. officer, or appointee of theHonorable J, W.Edgar, page 4 (WW-1364)

Asthe Professor and Lecturer in the instant case are presently receiving a salary or compensation from the State, the question is raised as to whether a memberof the ‘Boal’dof Trustees of an independent school district is holding an office nor position of honor or trust within the meaning of Section 33 of Article XVI.

In Attorney General’s Opinion No. O-2701 (1940) this office held that:

“Atrustee of an inde a civil officer of the tendent school dlstrlet is Sta e. See Thomas et al. vs. Abernathy County Line Independent School &strict, et al, 278 SW213 (1926).

“There can be no doubt that a ‘trustee of an independent school district holds an office of honor and trust within the meaning of Article 

### 16, Section 33, of our State Constitution. See Opinion No. O1422 of this department.” Consequently, if a Professor or Lecturer at the Unlversity of Texas serves as amemberofthe Boardof Trustees of an independent school district, it would result, in effect, in a forfeiture of any compensation payable to the Professor or Lecturer from the State of Texas as Section 

### 33of Article XVIprohibits the drawing or paying of warrants from the State Treasury in favor of any person for salary or compensation as an agent, officer or appointee of the State, whensuch person at the sametime holds another position or office of honor or trust.

Thenext question raised in your letter deals with whether the individuals, whohave been appointed by the Board of Trustees to fill the vacancies left by the resignation of the two newly elected membersof the Board of Trustees, will serve only until the next regular election.
erning Weare uncertain as to which statutory enactment govthe activities of independent school districts that this particular district is operating under but in such statutory provisions as Articles 277ka 2775~ 211776-l 2777d-2 2777f 2777, 2777a 2777b, 2777d aid 2783: Vernon!s Civil Statute; the Legislaiure has specihied that a& vacancies filled by th: Board of Trustees shall be for the unexpired term. However, Article 27’&b, Vernonus Civil Statutes, pertaining to districts of

‘lOOzOO scholastics or more andwherein there is situated a city having a population of 575000 or more inhabitants prov%des that vacancies shall be ffiled by an appointee until the next regular election.Honorable J. W,Edgar, page 5 

### mw-1364)

Consequently, weare independent school district. in of the opinion that unless the the instant case is operating individuals appointed by the pursuant to Article 2774b, the’ Board of ‘JYustees to fill the vacancies upon the Board will serve for ‘the unexpired term 

### ofthe memberswhosevacancy is being filled,

In your letter you further requested an opinion from this office upon the following questions8

qqa o Does the Board of Trustees of an independent school distriot have authority legally to grant or execute a long-term (50years) lease to a fire prevention district for the erection and use of a fire hall onits school property?

‘lb, If the answer is in the affirmative, must the School Board first makea finding that such action will not endanger the health safety or welfare of its scholastics and that &hesite or area leased therefor is no4needed for school distric% purposes; in short, that the ground is surplus property?” Thetitle to property of anIndependent school district is bylaw vested in the Board of Trustees of such district, and the managementandcontrol of such property is given to the Board of Trustees of such d9,strict, Bustees of Indeuendent Sch 01Dis12; Tex, managementand control of such property, ership, the Board of Trustees sta;nds~in the position of a trustee, &yuQ Citv of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931).

In connec%ion with the Board of Trustees’ administration of such properties, our courts have recognized that the leasing of school property fcr non-school purposes maybe
in harmonywith the purposes of the trust andmaybe consistent with the faithful performance of the trust provi.ded the lease is madeunder conditions which preven%‘i~.ts ‘interfering with the conduct of the school0

In the case of hardt, 159 S,W, 1033 (Ci,v property was leased to a n purpose of allowi,ng the club to use such property as a site for baseball gamesD In retrasn for %heprivilege of using the property the club erected afence enclosing the entire school grounds, and such fence was to become the proper%y of the school district, In holding that the Board of Trustees was au%horized to enter into this lease, tn,eCow%held that:. .

Honorable J. W.Edgar, page 6 (WW-1364)

“The contract under consideration ermits the use of the school grounds only during tiie period of time”intervening between the close of the school in the spring andthe beginning of the term in the followlng fall, andwill result in quite a financial advantage to the school district.’ It maybe true that the use to which the grounds will be put under the contract is not actually necessary for the promotion of the school, yet, as it will not impede or interfere with its progress, or tend to injure the school property, andwill be used at a time whenthe grounds are not needed andwill not be used by the school, such use is not so inconsistent with the purposes to which the property has been dedicated or set apart as renders the contract permitting it illegal or unauthorized. +
. eI1 See also Attorney General’s Opinion No, O-5354 (1943).

As the Board of Trustees in the instant case is aware of the advantages to be gained by having fire protection and first aid facilities located In close proximity to the school facilities of the district, and in ;i.;w 0: ;he language of the Court in Rovse Indecendent School D rlc ReQ&.&& vi%!a?tk weare of the opinion that the Board of Trustees could lease certain property of the independent school district to a fire protection district, for erection thereon of certain fire protection facilities, so long as such action does not impede or interfere with the operation of the school,

As to the question of whether the Board of Trustees must first makea finding that such action will not endanger the health, safety or welfare of the students andthat the area leased is not needed for school district purposes, weare of the opinion that these are matters which the Board of Trustees must necessarily consider in arriving at a decision as to whether or not the lease will be made. It would seemto be fundamental that the Board of Trustees would‘not consider executing a lease until such time as these considerations had been favorably met. Whether these considerations have been favorably metwould depend upon the facts in each particular case andnot necessarily upona statement to this effect in the minutes of ameeting of the Board of Trustees 0Honorable J. W0Edgar, page 7 

### (W!&13&)

Section 

### 33of Article XVIof the Constitution of Texas would prohibit a Professor or Lecturer at the University of Texas from receiving compensation from the State for such services if at the sametime such Professor or Lecturer is holding the office or position as amemberof the Board of Trustees of an independent school district. Individuals appointed by the Board of Trustees of an independent school district to fill vacancies upon the Board of Trustees serve for the remainder of the unexpired term of the vacancy which is being filled unless such independent school district operates pursuant to the provisions of Article 277&b, in which event the appointee serves only until the next regular election0 TheBoard of Trustees of the independent school district in the instant case and under the facts stated would have the authority to lease certain property to a fire prevention district so long as such action does not impede or interfere with the operation of the school, Yours very truly, WILLWILSON Attorney General of Texas

PB swb APPMVED: OPINION

COMWITTEE W.V. Geppert Chairman MorganNesbite Marvin Sentell GradyChandler Assistant

REVIEWED

FORTBEATTCRNEY

GEBEBAL BY: Leonard Passmore