Honorable L. R. Thompson

CountyAuditor Taylor County Abllene, Texas
Dear Sir: Opinion No.‘ O-2701 Re: Would an old age assistance investigator who Isworking for the State Department of PublicWelfare in this Stalebe prohibited

, from holding office as a trustee of an in-

- dependent schooldistrict in this State under the laws of th1a State?

. Your request for opinion upon the'above statedques- ~'tionhas been received and carefully considered bY this department.

.

Article 16, Section 40 of our State Constitution,reads in part as follows:

"Noperson shall hold or exercise at the same time, more than one civil office of emolument...." Various exceptions, immaterialhere, are provided for in this section.
We quote from 34 Texas JurisprudenTe,page 323, as follows:

"'Office'embraces the ideas of tenure, duration, emolument and dut.ies.Among the criteria for determiningwhether an employment Is a public office are the following: the delegation of a portion of the sovereign functions of the government; the requirement of an official oath; that the powers entrusted are conferredby law and not by contract; and the fixing of the duration or term of office. It Is the duty pertaining to the officeand the nature of that duty, and not the extent of authority which make the incumbentan officer;and one is none the less an officerbecause his authority is confined to narrow limits. Salary or compensation is not essential to constitute an employment an offlce; it is a mere Incidentand forms no part of the office."Honorable L. R. Thompson,page 2 O-2701

I Since you did not specify in your letter.underwhat

Act the independent schooldistrictwas created,we shall assume that Itwas createdunder the general authority of Chapter 13, Title 49 of the Revised Civil Statutes of Texas, 1925, Article 2775 thereofprovides Inpart as follows:

"Ineach independentdistrict that shall hereafterbe organized, the county judge of the county inwhich said Independentdistrict is situated shall order an election for seven trustees, who shall constitute the schoolboard of such district, and all of whom shall servewithout comoensatlon. (Underscoringours)
It is, therefore, apparent that a member of the Board of Trustees of an Independentschooldlstrlct, created under the general law, does not hold an office of em lum nt within the meaning of Article 16, Section 40, of our itat: Constitutlon.
We quote from 34 Texas Jurisprudence,page 349, referring to Article 16, Sectlon 40, as follows:

"TheConstitutionapplies only to offices of emolument. 'Emolument'means a pecuniaryprofit, gain or advantage; hence the samepersonmay hold two civil officeswhere no pay, compensation or pecuniary gain attaches to one of them, provided they are not Incompatible."
We know of no reason why the duties of a member of the Board of Trustees of an Independent schooldistrict shouldbe in any manner conflicting or incompatiblewith the duties of an old age pension investigatorof the StateDepartment of PublicWelfare,of Texas.
We have carefully examined the statutes of this State pertaining to the StateDepartment of PublicWelfare .ofTexas and we find no statutepurporting to create an office known as an 'OldAge Pension Investigator.' We have been informed by the StateDepartment of PublicWelfare that an old age pension investigator is merely an employee of theDepartment who has no fixed tenure and can be discharged at will by the Department.

We conclude therefore that an old age pension investigator is not an officerbut merely holds a position of honor, trust or profit under the State of Texas.

Therefore,Article 1.6, Section 40, of our State Constl-, Honorable L. R. Thompson,page 3 o-2701

, tutlonwould not apply to the above situation, inasmuchas an

old age pension investigator is not an officer,nor a holder of a civil office of emolument, and a trustee of an lndependent schooldistrict does not hold a civil office of emolument. Article 16, Section 33, of our State Constitution,, reads In part, as follows:

"Theaccounting 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 prescr~ibedin this Constitution."
A trustee of an Independentschool districtis a civil officer of the State. See Thomas,, et al vs.A,bernathyCounty Line IndependentSchoolDistrict, et al, 278 SW 213 (1926).

There can be no doubt that a trustee of an independent schooldistrict holds an office of honors Andytrustwithin the meaning of Article 16, Section 33, of our State Constitution. See OpinionNo. O-1422 of this department.

OpinionNo. O-1422 of this department holds that a person may legally serve on the board of directors of the Texas College of Arts and Industries,and at the same time serve as a member of the board of trustees of an Independent schooldistrict; but indoing so he forfeits all right to any compensation to which he might have been entitled as a director of'the college, by reason of Article 1.6, Section 33, of the Texas Constltution.

OpinionNo. o-2528 of this department holds that a person may legally serve as an inspector of the Texas Liquor Control Board, and at the same time serve as a member of the Board of Trustees 'ofan lndependentschool district;but in doing so, he forfeits all right to any compensation to which he might have been entitled as an Inspectorof the Texas Liquor Control Board, by reason of Article 16, Section 33, of the Texas Constitution.

Limited Conference OpinionNo. 0-2607 of this department holds that if a physician employedpart time by one lnstltution of the State accepts and holds a slmllarplace or posltlon in another instftutlonat the same time, he cannot receive a salary or compensation for eitherpositionduring the period of time that both are helcl.. We enclose herewitha.. . .

.

Honorable L. R. Thompson,page 4 O-2701

copy of said opinionwhich containsa comprehensivedlscus- -sionof the matters involved therein.

In the Instantquestion an old age pension Investigator clearly holds a position of profit under the State. Doubtless, It Is also a position of honor and trust. We also think he would be "anappointee" 

### 0-2607. under the holding of our OpinionNo.

And as shown above, a trustee of an Independent school district holds an offlce of honor and trust under this State.

You are thereforerespectfully advised that it is the opinion of thisdepartment that a person may legally serve as an old age pension lnvestlgatorunder the State Department of PublicWelfare of Texas, and at the same time serve as a member of the board of trustees of an independent schooldistrict; but In doing so, he forfeits all right to any compensation for such period of time to which he might have been entitled as an old age pension Investigator of the State Department of Public Welfare .ofTexas, by reason of Article 

### 16, Section 

### 33, of our State Constitution.' Very truly yours
ATTORNEY GENERAL OF TEEAS

By s/‘Wm.

J. Fanning Wm. J. Fanning Assistant
WJF:AW:wc

APPROVEBSEP 

### 13, 1940 ' s/Gerald C. Mann ATTORNEY GENERALSOF TEXAS Approved Opinion CommitteeBy s/BWB Chairman