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AUSTIN ~~.TExAs~ ,
JOEIN BEN s3EIcPPE~ID 1 ‘~;g&
Az-x01Mls1
OENlOrnAL July 27, 1953
Hon. .Archle 8 ., ~HcDonald Opinion No. S-74
County Attorney
,&ore County Re: Ability of the county to
Dwau, Texas make a vallcl tax levy when
one county commissioner is
absent beca:use he is in the
Dear Mr.. McDonald: armed forces.
You have re,queated the opinion of this office
,conoernlng the validity of a tax levy by Commi,asionera I
Court while one Commissioner 18 absent because of his
induotlon into the active military servicQ of the United
States, and &e 'to the validity of paying his salary dur-
ing his absence.
You’have adriined us that the Comml#aloner in
question was industed Into a reserve component of the
Armed Forces, a& distinguIshed from a regular component.
Art~icle 2343, Vernon’s Civil Statutemr, stat.ea
that t
‘Any three members of the said court,
including the county judge, ahall constitute
a quorwl for the trfins,aation of any business,
,t OS levu.lra a oount~ ta+” (Emphaeis
Article 2354, Vernon’fi Civil Statutes, provides:
Of like mavwt 19 Article 7045, VernonQ Civil
Statute& The&e provisIons are mandatory that all mem-
berfb of the CPmmlnaLonercr’Court muat attend, the regular
B,,emlon OS ths c.ouPt In which any oount,y tax is l,e,v,Led.
Hon. Archle S. McDonald, page 2 (S-74)
, 41 S.W.2d
Free v. Scarborouprh, 672,(Tex.Clv.App.
70 Tex. 714 1,931i ;
8 S.W. 490 (1888"j
1477 (1939); Att’y Gen. op. O-4335
Section 40 of Article XVI of the Const&tutlon
of TexaB provide6i that. one hol,dlng a civil office of
emolument under the State of Texas does not vacate the
office bu becomlna a member of a reserve unit of the
. Hamilton v.
GeniOp. O-b2
“To our minds,, it is illogical to con-
tend that the construction we have given
these ccnstltutlonal provisions would make
it imposelble for a county commissloner~8
court to fix tax rates, if a member thereof
should be absent for the same reason, Judge
Dixon. was absent, .because Article 7045 of
our Civil Statutes requires all members of
,such courts to be present when county tax
rates are fixed. Certainly a statute cannot
override the ConstltutlonL Where the Consti-
tution permits a member to be abs,ent,, a
atatute cannot require him to be present.
It follow~ti that in such iw,$ance Article
7045, suwa, cannot be applied as to the
member absent by constitutional authority.”
Cramer v. Sheppard, ,supra, p. 155.
Sinc,e Sectlon40 of Article XVI of the Texas
Constitution permits a member of commissioners1 court to
be a member of a reserve unit of the Unlted States armed
furces almultaneoualy, and his presence Is required under
federal law outside the limits of his county. then the
provisions of Articles 2343, 2354 and 7045, V.C.S., can-
not require him to be present at a sesalon of the court
in wh&ch a county tax ia levied, and thes,e statutory re-
auirements therefore do not aonlv as to the member absent
by~con#tltut&on@l suthority, -$ramer
InBoftW aa Att'y Qene OP, O-4389 (194
the holding herein It la expressly ,o
Hon. Archle S. McDonald, page 3 (b-74)
Even though he is absent from the county in
military service the oommlsoioner I$ entitled to his
cLalary, Salary and emolumentmrare Incident to the
ta th,e office. and not to ItEe,o~acupatlon or the per
of offlc,lal i¶Ihle#k+ .Markure.l.ll v .,., Galpe t.
273 (Tex&lv.App~, 1943, error ref .),,; i&8$' 0::: &! :f62 45,
aupra.
Articles 2343, ,?3,54:and 7045, V.C.S.,
do not require a commis,eioner to be present
at a term of commiaaloners court at*which
a county tax ia levied if the Texas Constl-
W&Ion and fe,derarlaw permit8 his absence
in military aer&oe In a reserve component.
During his absence he is entitled to the
salary of his office*
Yours very truly,
kPPROVED: JOHNBEN SIiEiPPEFiD
Attorney General
J, C, Davis, Jr.
Cg'unty Affalre Divi,slon
Wi,llis En Gresham BY
Reviewer
Robert S. Trottl
First Aaalatant
John Ben Shepperd
Attorney Qtnkral
BEL:am