Honorable L. R. Thompson 

County Auditor 

Taylor County 

Abllene, Texas 

Dear Sir: Opinion No.‘ O-2701 

Re: Would an old age assistance investigator who Is working for the State Department 

of Public Welfare in this Stalebe prohibited , from holding office as a trustee of an in- 

- dependent school district in this State under 

the laws of th1a State? 

. 

Your request for opinion upon the'above stated ques- 

~'tion has been received and carefully considered bY this department. . 

Article 16, Section 40 of our State Constitution, reads 

in part as follows: 

"No person shall hold or exercise at the same 

time, more than one civil office of emolument...." 

Various exceptions, immaterial here, 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 determining whether 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 conferred by law and not by contract; 

and the fixing of the duration or term of office. 

It Is the duty pertaining to the office and the 

nature of that duty, and not the extent of authority 

which make the incumbent an officer; and one is 

none the less an officer because his authority is 

confined to narrow limits. Salary or compensation 

is not essential to constitute an employment an 

offlce; it is a mere Incident and forms no part of 

the office." 
Honorable L. R. Thompson, page 2 O-2701 

I 

Since you did not specify in your letter.under what 

Act the independent school district was created, we shall assume that It was created under the general authority of Chapter 13, Title 49 of the Revised Civil Statutes of Texas, 1925, 

Article 2775 thereof provides In part as follows: 

"In each independent district that shall hereafterbe organized, the county judge of the 

county in which said Independent district is situated shall order an election for seven trustees, 

who shall constitute the school board of such 

district, and all of whom shall serve without 

comoensatlon. (Underscoring ours) 

It is, therefore, apparent that a member of the Board 

of Trustees of an Independent school dlstrlct, 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: 

"The Constitution applies only to offices of 

emolument. 'Emolument' means a pecuniary profit, 

gain or advantage; hence the same person may hold 

two civil offices where 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 school district should be 

in any manner conflicting or incompatible with the duties of 

an old age pension investigator of the State Department of 

Public Welfare, of Texas. 

We have carefully examined the statutes of this State 

pertaining to the State Department of Public Welfare .of Texas 

and we find no statute purporting to create an office known 

as an 'Old Age Pension Investigator.' We have been informed 

by the State Department of Public Welfare that an old age 

pension investigator is merely an employee of the Department 

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 officer but 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 

, 

tutlon would not apply to the above situation, inasmuch as an 

old age pension investigator is not an officer, nor a holder 

of a civil office of emolument, and a trustee of an lndependent school district does not hold a civil office of emolument. 

Article 16, Section 33, of our State Constitution,, 

reads In part, as follows: 

"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 prescr~ibed in this Constitution." 

A trustee of an Independent school districtis a civil 

officer of the State. See Thomas,, et al vs. A,bernathy County 

Line Independent School District, et al, 278 SW 213 (1926). 

There can be no doubt that a trustee of an independent 

school district holds an office of honors Andy trust within the 

meaning of Article 16, Section 33, of our State Constitution. 

See Opinion No. O-1422 of this department. 

Opinion No. 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 school district; but in doing 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. 

Opinion No. 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 'of an lndependent school district; but in 

doing so, he forfeits all right to any compensation to which 

he might have been entitled as an Inspector of the Texas Liquor 

Control Board, by reason of Article 16, Section 33, of the 

Texas Constitution. 

Limited Conference Opinion No. 0-2607 of this department holds that if a physician employed part time by one lnstltution of the State accepts and holds a slmllar place or 

posltlon in another instftutlon at the same time, he cannot 

receive a salary or compensation for either position during 

the period of time that both are helcl.. We enclose herewith a 
. . . . 

. 

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

copy of said opinion which contains a comprehensive dlscus- 

-sion of the matters involved therein. 

In the Instant question 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 "an appointee" 

0-2607. 

under the holding of our Opinion No. 

And as shown above, a trustee of an Independent school 

district holds an offlce of honor and trust under this State. 

You are therefore respectfully advised that it is the 

opinion of this department that a person may legally serve as 

an old age pension lnvestlgator under the State Department of 

Public Welfare of Texas, and at the same time serve as a member of the board of trustees of an independent school district; 

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 .of Texas, 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 GENERALS OF TEXAS 

Approved Opinion Committee By s/BWB Chairman