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### PEEATTQMNEY 

### GENERAL.
Q,P TEXAS

PRICE DANIEL ATTORNEY

GENERAL AunTIN 11. -

.,

January 18, 1949

Hon. L. A. Woods State, Superintendent Department of, Education Re: Authority oi’~County Austin, Texas Superintendent or Superintendent of Attn: Hon. T. M.Trimble State aid school dlsFirst Assistant trict to act as coordinator of county veteran’s school and receive pay therefor.

Dear Sir:

Wequote from your recent letter as tollovs:

“In order that this oftice maybetter interpret the mean1.q of Sections 33and Section 40of Article XVIof the State Constitution, andto have amore concise understanding of the commonlaw interpretation of incompatibility of positions, I amsubmitting to youthe Sallowingexamples and asking you to rule on each specific case:

“1

. Acounty superintendent, uho is drawing the statutory salary, takes on the additional reeponsibllity of coordinating the county veterans school. Mayhe receive anadditional salary for the addition31 service which he renders a8 coordinator of the county veterans’ school?

“2. Asuperintendent of an independent equalization aid school district is also acting as coordinator of a veterans’ school which is operated by his board of trustees. Mayhe in addition to his regular salary receive anadditions.1 salary for his services a8 coordinator of the veteranat school?”
Artiole 2683b, V. C. S., provides as follovs:Hon. L. A. Woods, page 2 (V-759)

“Sec. 2. Thecounty school trustees of every county in the State of Texas are hereby authorized to maintain, operate and admlnlster special schools in their respectlvo cowaties andestablish classes therein for the education andvocational training of veterans of World Ws,rII and also for anyother educational benefits whlch,may be provided by law for such veterans, alr”ruoh schools and claase8 to be conducted under the jurisdiction and supervlalon of the respective county school bosrdr in their respective counties. Provided, however, that no provision of the herein Section 2or this Act shall apply to those counties in which atax Supported college or junior college la already operating such non-credit classes andschools for Veterans of World WarII.
“Sec. 3. TheState Board ior Vocational Education Is hereby authorlsed to allocate andpay to the respective county boards of trustees of the respective counties in this state, andsuch county trustees are hereby authorized to receive, such moneyas well as anyprivate donations madefor the same purpose andshall stand charged with the power andduty to maintain, operate andadminister the samefor the purposes above stated.

“Sec. 4. The county school trustees are authoriced to employ instructors, as they may deemnecessary, and to do andperform all things which they deemproper for the successful operation of such schools, andpay for all such **by** varrants dratn onfunds received by themfor the purpose. The costs for the operation andmaintenance of the “special schools’ authorised under Article 2683b are paid at the dlreatlon of the State Board of Vocational Education to county boards OStrustees operating such schools out of Federal funds received by the State Board in accordance with aState plan and contract approved and adopted by the Board andthe Veterans Administration. Attorney Qeneral’s Opinions Ilos. O-6867 at page 4etseq; V-51. TheFederal funds so received and QlaC0din the State Treasury have been appropriated to the specific purpose authorized by the Government. H. B. 542, 50thHon. L. A. Woods, page 3 (V-759)

Leg. Acts 1947, Sets. 4and5; Opinion Bo. O-6867. The State Board of Vocational Education acting under Section 3, Article 268jb, allocates andauthorizes to be paid to each respective county board of trustees budgeted amounts needed for this program. AState warrant In lumpsumfor approved amounts Is forwarded to partlclpatlng county boards which, in turn, drawwarrants onthere funds received andde oslted by themfor this purpose. Section 4, Article 26 3b. 8 Thus, statutory authority is madefor the Federal funds received by the State to reach the participating county boar$s to be used So; the purpose of administration of these SQ0Cial schools for veterans by the county school boards.

Underthe statute above quoted, It is clear also that the special schools orclasses authorized therein constitute no part of the public free school system of Texas. Theyare not, nor was It intended that they be supported by anyState public free school funds, per capita or equalization aid, county orlocal school district funds. Opinions Nos. O-6867, O-7258, V-51.

Article 2683b provide8 that the county school trustees mayemploy instructor8 snd do all things which they maydeemQroper for the successful operation of such schools. Such instructors, teachers, co-ordlnators a.8the county board deems proper for the OQeratlon of such schools andemploys hold employments as dlatinguished from public offices. Attorney &n0ral’S Opinions Nos. O-7446, O-7491, O-5087, O-371 have prevlouslg advised to the effect that a school teacher does not hold an office; he is anemployee.

Acounty SUQ0rintend0ut, of course, is apublic officer. Hsholds a civil office of emolument. Article 2688, V. C. S. HISsalary is based onthe scholastic population of the county and is paid monthly upon the order of the county school trustees out of the Avallable School Fundof the county. Article 2700, V. C. Austin 1,S.D. v. Marrs, 121 Tex. 72, 41 S. W. (26) 9.S.;

Attorney General’s Opinion Ho. O-7323 advises that a superintendent of an Independent school distriot holds apublic office andthat it IS a civil office of emolument. Klmbroughv. Barnett, 93Tex. 301, 55S. W. 120, later cited b
v. Belsterllng, 10 Ethe SupremeCourt of Texas in BOMW Tex. 432, 138S. W. 571; Temple I. S.D. v. Proctor, 97S. W. (26) 1047, writ refused. His salary is paid out of local school funds of the dfSb?iCtHon. L. A. Woods, page 4 (V-759)

including anyState aid funds for eligible andhas madeapplication 1947. which the district IS

Wenowexamine the general law to see If there 1s any legal inhibition to one person serving as county superintendent and co-ordlnator of "special schools" authorized under Art. 2683b, or as Superintendent of an Independent School District and co-ordlnator of such special schools. Section 40of Article XVI, Constitution of Texas, prohibits the holding by oneperson of
more than one civil office of emolument, with certain exceptions not pertinent here. Wehave already determinedherein that a co-ordlnator employed by the county school board under Art. 2683b does not as such hold a civil office of emolument. It follows that the constltuMona1 provision prohlbltlng dual office holding 1s not applicsble andin itself would not prevent one person holding the office of county superintendent or the office of superintendent of anindependent school district andthe employment, co-ordlnator, under consideration.

Section 33 of Art. XVI, Constitution of Texas, prohibits the accounting officers of this State from drawing or paying awarrant upon the Treasury in favor of anyperson 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 United States. Since the State accounting officers neither drawnor pay awarrant upon the Treasury in favor of either the county superintendent, the superintendent of anindependent school district, or the coordinator under consideration, this section is inappllcable. Attorney General's Opinions Nos. O-5087, o-7491. Theprohibition in Section 33, Article XVI, is directed at payments out of the State Treasury onwarrants issued andpaid by the State's accounting officers. Attorney General's Opinion No. V-689.

Wehave consldered the statutes relative to the respective duties incumbent upon a county superintendent andthe co-ordinator under consideration, as well as those concerned with a superintendent of an lndependent school district andthe co-ordlnator, andWe can conceive of no sound basis uponwhich it maybe said that the duties of the double employments therein considered are incompatible. The county suQerlntendent'S duties are oonflned by statute to various matters pertaining to the public free school system In his county.Hon. L. A. Woods, page 5 (V-759)

Article 2700, Sec. 2, V. C. S, Theduties of a superintendent of an independent school district are llkevlse confined to matters pertaining to the public free school system of his school district. Art. 2781, V. C. S. Article 2683b speclflcslly places authority In the county boards ff trustees to ms$ntaln, operate andadmlnlster these special schools for veterans in their county,

“a.11such schools a.ndcla.sses to be conducted under the jurisdiction andsupervlslon of the respective county school boards In their respective counties.” Thequestion of the authority of a county school board to avsrd additional pay or se~laryfor the performa,nce of a.ddlMona1 duties fixed by law 1s not Involved In the mstters here under consideration.

Thus, if a county superintendent takes on the additional responslbllitg, that ,is, 1s employed by the county school boa,rd to act es co-ordlna.tor of the county veteran schools, he mayreceive another saiary to be pald from funds deslgnated in Art. 2683b for this addltional work, the performance of which is not required of himunder the statutes fixing his duties as county superintendent.

Wehave observed that your second question is directed to a superintendent of an independent school district, which district Is receiving State salary aid under H. B. 295, Acts 1947. Youere concerned with eligibility of the school for State aid by virtue of the provision found in QaX%grs,Qh 4 of Sec. 1, Art. I, H.B. 295, Acts 1947, which reads:

vIioschool district will be eligible for anytype of aid except tuition aid, under the provisions of this Act, which Days eny salary above those specified in thls Act from any State, Local or Federal funds whatsoever, except Federni funds used to supplement salaries OSVocational AgrlcuLture, HomeEconomics and Trades andIndustries teachers, andfunds from the Federal LanhamAct.” (Emphesls addedj
Theabove-quoted provlslon, however, does not apply to the situation presented in this opinion, because the paymentof State accepted Federal funds for the salaries of employees andInstructors In the county veteran “speci?.l schools” 1s not madethrough any school dlstrlct but is paid in the mannerhereinabove set out.Hon. L. A. WOOLS, pe,ge6 (v-759)

Accordingly, If a superintendent of anlndependent school district takes on the additional responsibility, that is, Is employed by the county school board to act as co-ordinator of the county veteran schools, he mayreceive a salary from funds designated in Art. 2783b for this additlonal work, the performance of which Is not required of himin his offlclal capacity as a school district superintendent.

This opinion covers only the legality of the dual employments dlsousssd herein. It Is not to be considered as annpprovs.1 of the actions of county school boards in the employment of full-time public officials
as Instructors, co-ordlnators, etc. in the county veteran schools, andIn the payment of a salary therefor. It is entirely up to the county board of trustees and the school district to determine their respective pollties concerning these matters.
SUMMARY

Acounty superintendent employed by a county school board as co-ordinetor of county veteran schools established under Art. 2683b, V.C.S., meyreceive a selary from funds designated in said Act for this work, the performance of which Is not required of himin his official cepacity as county superintendent.

Asuperintendent of anindependent school district employed by a county school board as co-ordinator of county veteran sohools-, mayreceive a salary from funds designated in Art. 2683b, V.C.S., for this work, the performance of which is not required of himIn his official capacity as Independent school district superintendent. His acceptance of said salary will not render his school district inellglble for State aid.

Yours very truly,
APPROVED: ATTORNEY GENERAL

OFTEXAS

ATTORNEX

GENERAL CEC:mv:jcp:bh II Chester E. Olllson Assistant