Untitled Texas Attorney General Opinion

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 -5581- 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-