. . ,
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).
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. .
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.
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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.
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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
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