Untitled Texas Attorney General Opinion ( 1972 )

TRF, ATI-OICNEY GENERAL
OF TEXAS
Ronorable,Jamer U. Cross Opition&&-1146
Executive Director
Texas Parks liWildlife Department Re: Whether a Commissioner on
John II. Reagan Building the~:Texas -Parks and Wild-
Austin, ,Texas 78701 1ifeRoard may simultane-
ously serve~on the board
of an independent school
Dear Mr. Cross: district-~:
^.
,.
Your ,request for an opinion on'the.aboveVsubject matter
reads in part,as:follows: -:
i..
: !. '
, I?17.
'One of our Conmissioners was-on the,Roard of
an IndependentSchool District prior'to-this ap-
pointment.as a Parks and Wildlife Commissioner. .,
He-is.still serving on such School Board in the.
same .term in which he was serving when appointed
to the Parks and Wildlife Commission;5'~ I:.
I. \
'He has received no pay, expenses, per diem, '
.or:compensation of any kind from,.either :bf said
positions;:and:.this matter is not in litigation.
.', ._.#
'. .
."Is~thisConmissioner legally se&ins .on the
Parks and Wildlife Commission? If.:not;why not?
If he can serve, are there any special conditions
attached~ tosuch~service?!' ‘,,:7.'
:
~,'
i,.i:.'i
:
Section 40 of Article XVI; Co&titution,of Texas, pro-
hibits the holding of more than one civilboffice of emolument.
" ‘i
Prio&o'the 1967 amendment; Section 33 of Article XVI
of the Constitutionof Texas. provided in~part:
"The Acco&zing~Officers of this~State:sliall
neither.draw nor pay a warrant-:upon.the Treasury
in favorlof-.,anyperson, for salary.orcompensation
as agent, officer or appointee, who holds at the
same time any other office or position of honor,
tr.ust or profit, under this State, or the United
States, except as prescribed in this Constitution.
. . .II
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Hon. James U. Cross, page 2 (M-1146)
The 1967 amendment to SsCtiOn 33 of i4rtiCle XVI added
the following provision:
"It is further provided, until September 1,
1969, and thereafter only if authorized by the
Legislature by general law under such restrictions
and limitations as the Legislature may-prescribe,
that a non-elective State officer or employee may
hold other non-elective offices or positions of
honor, trust, or profit under this State or the
United States, if the other offices or positions
are of benefit to the State of Texas or are re-
quired by State or federal law, and there is no
conflict with the original office or position for
which he receives salary or compensation. No
member of the Legislature of this State may hold
any other office or position of profit under this
state, or the United States."
Pursuant to the 1967 amendment, Article 6252-9a, vernon't
Civil Statutes, was enacted stating the conditions under which a
nonelective State officer may hold other nonelective offices.
In Attorney General's opinion M-409 (1969) it was
pointed out:
"In determining what constitutes an office, within
the meaning of a constitutional provision, this office
has frequently applied the criteria set forth in Barney
v. Hawkins, 79.Ront. 506, 257 P. 411, 53 A.L.R. 583
(1927), to wit:
*'After an exhaustive examination of the au-
thorities, we hold that five elements are indis-
pensable in any position of public employment, in
order to make,it a public office of a'civil nature:
(1) It must be created by the Constitution or by
the Legislature or created by a municipality or
other body through authority conferred by the Legis-
lature; (2) It must possess a delegation of a portion
of the sovereign power of government, to be exercised
for the benefit of the public; (3) The powers con-
ferred, and the duties to be discharged, must be de-
fined, directly or impliedly, by the Legislature or
through legislative authority: (4) The duties must
be performed independently and without control of a
superior power, other than the law, unless they be
-5582-
Hon. James U. CrOsS, page 3 (M-,1146)
those of an inferior or subordinate office, created
or authorized by the Legislature, and by it placed
under the general control of a superior officer
or body; (5) It must have some,permanency and con-
tinuity, and not be only temporary or occasional.'"
Under the foregoing test membership on the Parks and
Wildlife Commission constitutes a nonelective office. Article
6067, Vernon's Civil Statutes. On the other hand, the office of
trustee of an independent school district is~an elective office.
Section 23.08, Texas Education Code. The office of trustee of an
independent school district, however, is not an "office of emolu-
ment" within the meaning of Section 40 of Article XVI of the
Constitution of Texas.
dependent School Dist.,
on other grounds, 290 It is noted that on appeal
the Commission of Appeals of Texas held the offices of school
trustee and alderman incompatible and stated that ". . i.whether
the office of school trustee . . . is an office of 'emolument'
within the terms of section 40, art. 16, of'the Constitution,
is immaterial, and in respect to that question we do not ex-
press or imply a conclusion." (At p. 153).
In view of the foregoing, a Commissioner on the Parks
and Wildlife Commission may at the same time.hold the office of
trustee of an independent school district. However, the Comp-
troller of Public Accounts may not issue him a warrant in pay-
ment of the compensation provided for in Item 1 of the appro-
priation to the Parks and Wildlife Department contained in the
current General Appropriations Act (p. 111-105, 36041, since the
1967 amendment of Section 33 of Article XVI.does not exempt from
its provisions an elective office. Sovett v. Calvert, 467 S.W.211
205 (Tex.Civ.App. 1971, error ref. n.r.e.1; Attorney General's
Opinion No. M-193 (1968).
SUMMARY
An individual may hold at the same time the
nonelective office of Commissioner on the Parks
and Wildlife Commission and the elective office
of trustee~of an independent school district since
the office of trustee is not an office of emolument
within the meaning of Section 40 of Article XVI,
Texas Constitution. Section 33, Article XVI, of
the Constitution of Texas, however, prohibits the
Comptroller of Public Accounts from issuing to the
-5503-
Hon. James U. Cross,.page 4 (M-1146)
Commissiqner any warrant in payment of the com-
pensation provided in Item 1 of the appropriation
to the Parks and Wildlife Depa
C. MARTIN
ney General of Texas
Prepared by John Reeves
Assistant..Attoqney General
APPROVED:
OPINION COMMIT&
Kerns Taylor, Chairman
W. E. Allen ,I Co-Chairman
Roger Tyler
Marietta Payne
Scott Garrison
Jam$is-Quick
SAMURL D. MCDANIEL
Staff Legal Assistant
ALFRED-WALKER
Executive Assistant
NOLA WNITE
First Assistant
-5504-