Untitled Texas Attorney General Opinion

. . , TBIEATTORNEY GENERAL OP%+EXAS Honorable Wm. J. Benardino Opinion No. C-541 County Attorney Montgomery County Re: Authority for one person Conroe, Texas stop hold at the same time the positions of Deputy Tax Collector and Truant Officer of a school dis- trict, and Constable,and Dear Mr. Benardino: related questions. Your request for an opinion on the above subject matter asks the following questions: "1. If 'A' qualifies as Constable, can he, under the law, continue to hold the positions of Deputy Tax Collector and Truant Officer of the school district, drawing his salaries there- for, or are these positions incom atible as con- templatedby Article 16, Section &0, of our State Constitution? "2. If, in you.ropinion, these positions are incompatible,and ~.‘A’ cannot continue to draw salaries for these positions,has 'A',~asa matter of law, vacated the offices of Deputy Tax Collector and Truant Officer upon qualificationas Constable? "3. If, in your'opinion,the offices of Dep- uty Tax Collector and Truant Officer are vacated, would 'A' or his bondsmen be liable for any sala- ries received from the school d$strict as Deputy Tax Collector and Truant Officer after qualifying as Constable?" Section 40 of Article XVT of the Constitutionof Texas provides In part: "No person shall hold or exercise, at the same time, more than one Civil Office of emolument,ex- cept. . .ll(Exceptionsnot applicable). -2587- . . Hon. Wm. J. Benardino,page 2 (C-541) In Attorney General's Opinion WW-1442 (1962), it is stated: "As to your question 1 (a), numerous opin- ions from this office have held that the posi- tions of Tax Assessor and Collector of a county, independent school district, or of a conservation district are all civil offices of emolument. At- torne General Opinions Nos. o-697 (1939), O-2687 (19407,and WW-1295 (1962). Pruitt v. Glen Rose IndependentSchool District,‘12b Tex. 43 64 S.V.2d 1004 I19351. We hereby reaffirm these h&.dinns and also hoidthat a county water control and improve- ment district is a separate governmentalauthority and similar-toa conservationand reclamationdis- trict, and that therefore two separate offices of emolument are involved. It is thereforea violation of Section 40 of Article XVI for the same person to hold both offices in question.' We quote.fromPruitt v. Glen Rose IndependentSchool Dis- trict, 126 Tex. 45, 8% S.W.2d 1004 (lyj>), at t14S .W .2d 1007: ,"Thetext, 34 TexLJur. 354, g 19, summarizes the rule thus: 'Having elected to accept and quali- fy for the second office, ipso facto and as a mat- ter of law, he vacates the first office. This is true, where both offices are places of emolument, regardless of whether they are incompatible,and if they axe indompatiblethere is a vacation of the first office regardless of whether both are offices of emolument within the meaning of the Constitution. In such circumstancesthe constitutionalprovision that all officers shall continue to perform the duties of their offices until a successorhas been qualified does not apply."' In Attorney General's Opinion O-697 (1949), it was held: "Under Section 40 of Article 1.6 of the Consti- tution, above quoted, two civil officers of emolu- ment cannot be united in'the per80np unless one of them is within the enumeratedexceptions;and a person cannot hold or exercise two such offices in either a de jure or de facto capacity. Oden vs. Sinton IndependentSchool District, 234 S.W. 1090; Tex.Jur. Vol. 34, pa 347; State.vs. Gillette Estate, 10 S.W.2d 984. -2588- Hon. Wm. J. Benardino,page 3 (C- 541) I, . . . "Deputy sheriffs, deputy constables,deputy county clerks, and departmentalchief clerks are public officers. Therefore, we are of the opin- ion that a deputy tax assessor,-collectoris an officer within the purview of the above mentioned constitutionalprovisions. State vs. Brooks, 42 Tex. .62; Murray vs. State,,67 SW 26 274; Donges vs. Beall, 41 SW 26 531; Pfeffer vs. Mahuge, 260 SW 1031; Tex.Jur., Vol. 34, p. 602.” In Attorney General's Opinion W-1316 (1962), it was held that the office of constable constitutedb civil office of emolu- ment yithin the meaning of Section 40 of Article XVX of the Con- etltution of Texas. In view of the foregoing,your questions sre answered as follows: 1. If "A" qualifies a8 Constable,he cannot continue to hold the position of Deputy Tax Collector and Truant Officer of the independent school district. 2. If "A" qualifies for the'officeof Constable, he, ipso facto, vacates hisoffice of Deputy Tax Collector and Truant Officer of the independent school district. 3. Any salary paid to “A” by the school district after he has qualified for the office of Constable should be refunded to the independent school district. As "A" vacated the offices of Deputy Tax Collector and Truant Officer of the school district, by qualifyingas Constable,his bondsmen would not be liable for any salaries received by "A" from the school district, after qualifyingas Constable. After vacating such offices he had no duties to perform for the school district, as he was neither a de jure nor de facto officer. SUMMARY In view of the provieions of Section 40 ofArticle XVI of the Constitutionof Texas, prohibiting the holding of two civil offices of emolument at the,same time by one person, one person cannot hold the office of Constable at the same time he holds the office of Deputy Tax Collector and Truant Officer of an indepen- dent school district. -2589- Hon. Wm. J. Benardino, page 4 (C- 541) Whenever a person holding the office of Deputy Tax Collector and Truant Officer of an independent school district qualifies for the office of Constable, such person vacates the first office. Pruitt v. Glen Rose Independent School District, 12b Tex. 43 v . . , and he can no longer'drawcompensation as Deputy Tax Collector and Truant Officer of the independent school district. As "A" vacat- ed the offices of Deputy Tax Collector and Truant Officer of the school district, by quali- fying as Constable, his bondsmen would not be liable for any salaries.receivedby "A" from the school district, after qualifyingas Con- stable. After vacating such offices he had no duties to perform for the school district, as he was"neither.ade jure nor de facto officer. Yours very truly, WAGGONER CARR Attorney General BY *ek ohn Reeves Assist&d JR:ms APPROVED: OPINION COMKITTEE W. V. Geppert, Chairman J. C. Davis Kerns Taylor Phillip Crawford Roger Tyler APPROVED F'ORTBB ATTORRBY GENERAL By: T. B. Wright -2590-