t .
PEE ATTQMNEY GENERAL.
Q,P TEXAS
AunTIN 11. - .,
PRICE DANIEL
ATTORNEYGENERAL
January 18, 1949
Hon. L. A. Woods
State, Superintendent
Department of, Education Re: Authority oi’~County
Austin, Texas Superintendent or
Superintendent of
Attn: Hon. T. M. Trimble State aid school dls-
First Assistant trict to act as co-
ordinator of county
veteran’s school and
receive pay therefor.
Dear Sir:
We quote from your recent letter as tollovs:
“In order that this oftice may better
interpret the mean1.q of Sections 33 and
Section 40 of Article XVI of the State Con-
stitution, and to have a more concise un-
derstanding of the common law interpretation
of incompatibility of positions, I am sub-
mitting to you the Sallowing examples and
asking you to rule on each specific case:
“1 . A county superintendent, uho is
drawing the statutory salary, takes on the ad-
ditional reeponsibllity of coordinating the
county veterans school. May he receive an ad-
ditional salary for the addition31 service
which he renders a8 coordinator of the county
veterans’ school?
“2. A superintendent of an independent
equalization aid school district is also act-
ing as coordinator of a veterans’ school
which is operated by his board of trustees.
May he in addition to his regular salary re-
ceive an additions.1 salary for his services
a8 coordinator of the veteranat school?”
Artiole 2683b, V. C. S., provides as follovs:
Hon. L. A. Woods, page 2 (V-759)
“Sec. 2.
The county school trustees of
every county in the State
of Texas are hereby
authorized to maintain, operate and admlnls-
ter special schools in their respectlvo cowa-
ties and establish classes therein for the
education and vocational training of veterans
of World Ws,r II and also for any other educa-
tional benefits whlch,may be provided by law
for such veterans, alr”ruoh schools and claa-
se8 to be conducted under the jurisdiction
and supervlalon of the respective county
school bosrdr in their respective counties.
Provided, however, that no provision of the
herein Section 2 or this Act shall apply to
those counties in which a tax Supported col-
lege or junior college la already operating
such non-credit classes and schools for Vet-
erans of World War II.
“Sec. 3. The State Board ior Vocational
Education Is hereby authorlsed to allocate
and pay to the respective county boards of
trustees of the respective counties in this
state, and such county trustees are hereby
authorized to receive, such money as well as
any private donations made for the same pur-
pose and shall stand charged with the power
and duty to maintain, operate and administer
the same for the purposes above stated.
“Sec. 4. The county school trustees are
authoriced to employ instructors, as they may
deem necessary, and to do and perform all
things which they deem proper for the success-
ful operation of such schools, and pay for
all such by varrants dratn on funds received
by them for the purpose.
The costs for the operation and maintenance of
the “special schools’ authorised under Article 2683b are
paid at the dlreatlon of the State Board of Vocational
Education to county boards OS trustees operating such
schools out of Federal funds received by the State Board
in accordance with a State plan and contract approved
and adopted by the Board and the Veterans Administration.
Attorney Qeneral’s Opinions Ilos. O-6867 at page 4 etseq;
V-51. The Federal funds so received and QlaC0d in the
State Treasury have been appropriated to the specific
purpose authorized by the Government. H. B. 542, 50th
Hon. L. A. Woods, page 3 (V-759)
Leg. Acts 1947, Sets. 4 and 5; Opinion Bo. O-6867. The
State Board of Vocational Education acting under Sec-
tion 3, Article 268jb, allocates and authorizes to be
paid to each respective county board of trustees budget-
ed amounts needed for this program. A State warrant In
lump sum for approved amounts Is forwarded to partlclpat-
lng county boards which, in turn, draw warrants on there
funds received and de oslted by them for this purpose.
Section 4, Article 26 8 3b. Thus, statutory authority is
made for the Federal funds received by the State to
reach the participating county boar$s to be used So; the
purpose of administration of these SQ0Cial schools for
veterans by the county school boards.
Under the statute above quoted, It is clear
also that the special schools or classes authorized
therein constitute no part of the public free school
system of Texas. They are not, nor was It intended that
they be supported by any State public free school funds,
per capita or equalization aid, county or local school
district funds. Opinions Nos. O-6867, O-7258, V-51.
Article 2683b provide8 that the county school
trustees may employ instructor8 snd do all things which
they may deem Qroper for the successful operation of
such schools. Such instructors, teachers, co-ordlnat-
ors a.8 the county board deems proper for the OQeratlon
of such schools and employs hold employments as dla-
tinguished from public offices. Attorney &n0ral’S
Opinions Nos. O-7446, O-7491, O-5087, O-371 have prevl-
ouslg advised to the effect that a school teacher does
not hold an office; he is an employee.
A county SUQ0rintend0ut, of course, is a pub-
lic officer. Hs holds a civil office of emolument.
Article 2688, V. C. S. HIS salary is based on the scho-
lastic population of the county and is paid monthly upon
the order of the county school trustees out of the Avall-
able School Fund of the county. Article 2700, V. C. S.;
Austin 1,S.D. v. Marrs, 121 Tex. 72, 41 S. W. (26) 9.
Attorney General’s Opinion Ho. O-7323 advises
that a superintendent of an Independent school distriot
holds a public office and that it IS a civil office of
emolument. Klmbrough v. Barnett, 93 Tex. 301, 55 S. W.
120, later cited b the Supreme Court of Texas in BOMW
v. Belsterllng, 10 E Tex. 432, 138 S. W. 571; Temple I.
S.D. v. Proctor, 97 S. W. (26) 1047, writ refused. His
salary is paid out of local school funds of the dfSb?iCt
Hon. L. A. Woods, page 4 (V-759)
including any State aid funds for which the district IS
eligible and has made application
1947.
We now examine the general law to see If there
1s any legal inhibition to one person serving as county
superintendent and co-ordlnator of "special schools" au-
thorized under Art. 2683b, or as Superintendent of an
Independent School District and co-ordlnator of such
special schools. Section 40 of Article XVI, Constitu-
tion of Texas, prohibits the holding by one person of
more than one civil office of emolument, with certain
exceptions not pertinent here. We have already deter-
mined herein that a co-ordlnator employed by the county
school board under Art. 2683b does not as such hold a
civil office of emolument. It follows that the constltu-
Mona1 provision prohlbltlng dual office holding 1s not
applicsble and in itself would not prevent one person
holding the office of county superintendent or the of-
fice of superintendent of an independent school district
and the employment, co-ordlnator, under consideration.
Section 33 of Art. XVI, Constitution of Texas,
prohibits the accounting officers of this State from
drawing or paying a warrant upon the Treasury in favor
of any person for salary or compensation as agent, of-
ficer or appointee, who holds at the same time any other
office or position of honor, trust or profit under this
State or United States. Since the State accounting of-
ficers neither draw nor pay a warrant upon the Treasury
in favor of either the county superintendent, the super-
intendent of an independent school district, or the co-
ordinator under consideration, this section is inappll-
cable. Attorney General's Opinions Nos. O-5087, o-7491.
The prohibition in Section 33, Article XVI, is directed
at payments out of the State Treasury on warrants issued
and paid by the State's accounting officers. Attorney
General's Opinion No. V-689.
We have consldered the statutes relative to
the respective duties incumbent upon a county superin-
tendent and the co-ordinator under consideration, as
well as those concerned with a superintendent of an ln-
dependent school district and the co-ordlnator, and We
can conceive of no sound basis upon which it may be said
that the duties of the double employments therein con-
sidered are incompatible. The county suQerlntendent'S
duties are oonflned by statute to various matters per-
taining to the public free school system In his county.
Hon. L. A. Woods, page 5 (V-759)
Article 2700, Sec. 2, V. C. S, The duties of a super-
intendent of an independent school district are llkevlse
confined to matters pertaining to the public free school
system of his school district. Art. 2781, V. C. S.
Article 2683b speclflcslly places authority In the coun-
ty boards ff trustees to ms$ntaln, operate and admlnls-
ter these special schools for veterans in their county,
“a.11 such schools a.nd cla.sses to be conducted under the
jurisdiction and supervlslon of the respective county
school boards In their respective counties.” The ques-
tion of the authority of a county school board to avsrd
additional pay or se~lary for the performa,nce of a.ddl-
Mona1 duties fixed by law 1s not Involved In the mstters
here under consideration.
Thus, if a county superintendent takes on the
additional responslbllitg, that ,is, 1s employed by the
county school boa,rd to act es co-ordlna.tor of the coun-
ty veteran schools, he may receive another saiary to be
pald from funds deslgnated in Art. 2683b for this addl-
tional work, the performance of which is not required
of him under the statutes fixing his duties as county
superintendent.
We have observed that your second question is
directed to a superintendent of an independent school
district, which district Is receiving State salary aid
under H. B. 295, Acts 1947. You ere concerned with el-
igibility of the school for State aid by virtue of the
provision found in QaX%grs,Qh4 of Sec. 1, Art. I, H. B.
295, Acts 1947, which reads:
vIio school district will be eligible for
any type of aid except tuition aid, under the
provisions of this Act, which Days eny salary
above those specified in thls Act from any
State, Local or Federal funds whatsoever, ex-
cept Federni funds used to supplement salaries
OS Vocational AgrlcuLture, Home Economics and
Trades and Industries teachers, and funds
from the Federal Lanham Act.” (Emphesls addedj
The above-quoted provlslon, however, does not
apply to the situation presented in this opinion, be-
cause the payment of State accepted Federal funds for
the salaries of employees and Instructors In the county
veteran “speci?.l schools” 1s not made through any school
dlstrlct but is paid in the manner hereinabove set out.
Hon. L. A. WOOLS,pe,ge 6 (v-759)
Accordingly, If a superintendent of an lnde-
pendent school district takes on the additional respon-
sibility, that is, Is employed by the county school
board to act as co-ordinator of the county veteran
schools, he may receive a salary from funds designated
in Art. 2783b for this additlonal work, the perform-
ance of which Is not required of him in his offlclal
capacity as a school district superintendent.
This opinion covers only the legality of the
dual employments dlsousssd herein. It Is not to be con-
sidered as an npprovs.1 of the actions of county school
boards in the employment of full-time public officials
as Instructors, co-ordlnators, etc. in the county vet-
eran schools, and In the payment of a salary therefor.
It is entirely up to the county board of trustees and
the school district to determine their respective poll-
ties concerning these matters.
SUMMARY
A county superintendent employed by a
county school board as co-ordinetor of county
veteran schools established under Art. 2683b,
V.C.S., mey receive a selary from funds des-
ignated in said Act for this work, the perform-
ance of which Is not required of him in his
official cepacity as county superintendent.
A superintendent of an independent
school district employed by a county school
board as co-ordinator of county veteran
sohools-, may receive a salary from funds
designated in Art. 2683b, V.C.S., for this
work, the performance of which is not required
of him In his official capacity as Independent
school district superintendent. His accept-
ance of said salary will not render his school
district inellglble for State aid.
Yours very truly,
APPROVED: ATTORNEY
GENERALOF TEXAS
II
ATTORNEX
GENERAL Chester E. Olllson
Assistant
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