THEATTORNEYGENERAL 

OF TEXAS 

Honorable J. W. Edgar 

Commissioner Of Education 

Opinion No, WW-1364 

Texas Education Agency Re: 

i 

Austin, Texas 

Whether Section 33 of 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. 

You have requested an opinion from this office upon the 

following questions : 

*Ia D Does Section 33, Article XVI or any other 

provision of the Texas Constitution or statutes prohibit such a Professor or Lecturer from receiving 

their pay from The University of Texas, while holding an office or position as a member of 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’ 

The facts surrounding the questions posed reveal that a ~, 

full-time Professor at the University of Texas and a Lecturer in 

Business Law at the University of Texas were both elected to serve ‘: 

as members of the Board of Trustees of an independent school district D The question then arose as to whether, pursuant to Article 

XVI, Section 33 of the Constitution of Texas, the pay of 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. ~‘~ 

The Board 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,o qualify of the Professor and 

the Lecturer Bo The Professor is an officerof ‘theRetired Reserve 

of the United States Navy and the Lecturer is a member of the 

United States Army Reserve. 

Section 33 of Article XVI of the Constitution of Texas 

provides that: 

“The Accounting Officers of this State shall 

neither 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 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 Guard of Texas, 

the National Guard Reserve, the Officers Reserve 

Corps of the United States nor to enlisted men of 

the National Guard, the’ Nakonal Guard Reserve 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 men of the United States Army, Navy; 

and Marine Corps 0t8 

In the case of 

S.W.2d 147 ‘(1943) 9 the Su 

140 Texo 271 167 

s had before it for 

consideration the provisions of Section 33 of Article XVI of the 

Constitution of Texas as well as certain other provisions of the 

Constitution and in its opinion the Court held that: 

“We think the people, by the adoptfon’of the 

amendments intended to avoid the inhibitions contained in the then existing Constitution w%th respect to dual office holding. This conclusion is 

fnescapable, in our Judgment, when we consider the 

reasons for submftting Sections 33 and k0 to the 

people for their approval, In selecting the classes 

to be favored by the amendments, the National Guard, 

the National Guard Reserve, and the Officers Reserve 

Corps’of the United States among others, were included. The inclusion of ?hese classes encouraged 

the citizens of this State to render a patr%otfc 

service to the State and the Nation by qualifying 

themselves for military service, 0 ., Thus it appears that,‘by the adoption of these amendments, 

the people consfdered it to be in the interest of 
Honorable J. W. Edgar, page 3 (WC1364) 

the public to favor the classes named, by allowing 

them at the same time to hold civil offices under 

the State. The people no doubt considered, when 

they adopted these amendments that the publfc”s 

welfare would be better served by allowing these 

classes to serve the State and Nation in the military units named, while at the same time rendering 

service to the State as civil officers.w 

It is apparent that the intent of the last sentence 

of Section 33 of Article XVI of the Constitution of Texas was 

merely to allow individuals who are members of the military 

units named in Section 33 of Article XVI to also be able to 

act as an agent, 

fY;Yking 

officer or appointee of the State without forthe corn ensation that this office or position may proWe are o P the opinion, however that mere membership in 

one if the military units designated in Section 33 of Article 

XVI would not serve as a complete removal of all the restrictions imposed by Section 33 of Article XVI. 

While Section 33 of Article XVI would allow an individual to serve as a member of one of the designated military 

units and also draw a salary or compensation from the State, 

this provision of the Constitution of Texas would not allow an 

individual to serve as a member of one of the designated mllitary units and also draw a salary or compensation from the State, 

and at tha same time hold another office or position of honor, 

trust or profit under the State or the United States other than 

being a member of one of the desfgnatad military ties. 

In tine instant case there would be no conflict with 

Section 33 of Article XVI for the Professor or Lecturer to receive pay from the State for their services rendered at the 

kfversity of Texas and at the same time be a member of one of 

the military units designated in Section 33 of Article XVI. 

However, membership in one of the deslbgnated military units 

would not serve as a basis for allowing a Professor or Lecturer 

who is rece%ving compensation from the State for services rendered at the University of Texas to at the same time hold another position or office of honor and trust other than as a 

member of one of the designated military units. 

The last sentence of Section 33 of Article XVI does 

not exempt certain fndfviduals from the provisions of Section 

33 of Article XVI; %t merely provides that those individuals 

serving in a position of honor, trust or profit as a member of 

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 the 
Honorable J, W. Edgar, page 4 (WW-1364) 

As the 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 member of the ‘Boal’d of 

Trustees of an independent school district is holding an office 

nor position of h onor or trust within the meaning of Section 33 

of Article XVI. 

In Attorney General’s Opinion No. O-2701 (1940) this 

office held that: 

“A trustee of an inde 

a civil officer of the t 

endent school dlstrlet is 

Sta e. See Thomas et al. vs. 

Abernathy County Line Independent School &strict, 

et al, 278 SW 213 (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 a member ofthe Board of 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 33 of Article XVI prohibits 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, when such person at the same time holds another position or office of honor or trust. 

The next question raised in your letter deals with 

whether the individuals, who have been appointed by the Board of 

Trustees to fill the vacancies left by the resignation of the two 

newly elected members of the Board of Trustees, will serve only 

until the next regular election. 

erning 

We are 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 and wherein there is situated a city 

having a population of 575 000 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, we are 

independent school district. in 

of the opinion that unless the 

the instant case is operating 

pursuant to Article 2774b, the’ individuals appointed by the 

Board of ‘JYustees to fill the vacancies upon the Board will 

serve for ‘the unexpired term of the members whose vacancy 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 (50 years) lease to 

a fire prevention district for the erection and 

use of a fire hall on its school property? 

‘lb, If the answer is in the affirmative, 

must the School Board first make a finding that 

such action will not endanger the health safety 

or welfare of its scholastics and that &he site 

or area leased therefor is no 4 needed for school 

distric% purposes; in short, that the ground is 

surplus property?” 

The title to property of an Independent school district 

is by law vested in the Board of Trustees of such district, and 

the management and control of such property is given to the Board 

of Trustees of such d9,strict, Bustees of Indeuendent Sch 01 Dis12; Tex, 

management and 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 may be in harmony with the 

purposes of the trust and may be consistent with the faithful performance of the trust provi.ded the lease is made under 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 games D In retrasn for %he privilege of using the property 

the club erected a fence 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,e Cow% held that: 
. . 

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

“The contract under consideration ermits the 

use of the school grounds only during t ii e period of 

time”intervening between the close of the school in 

the spring and the beginning of the term in the followlng fall, and will result in quite a financial 

advantage to the school district.’ It may be 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, and will be used at a time when the 

grounds are not needed and will 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. + . e I1 

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 

we are 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 make a finding that such action will not endanger 

the health, safety or welfare of the students and that the area 

leased is not needed for school district purposes, we are 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 seem to 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 met would depend 

upon the facts in each particular case and not necessarily upon a 

statement to this effect in the minutes of a meeting of the Board 

of Trustees 0 
Honorable J. W0 Edgar, page 7 (W!&13&) 

Section 33 of Article XVI of 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 same time 

such Professor or Lecturer is holding the office or 

position as a member of 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 

The Board 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, 

WILL WILSON 

Attorney General of Texas 

PB swb 

APPMVED: 

OPINION C OMWITTEE 

W. V. Geppert Chairman 

Morgan Nesbite 

Marvin Sentell 

Grady Chandler 

Assistant 

REVIEWED FOR TBE ATTCRNEY GEBEBAL 

BY: Leonard Passmore