Untitled Texas Attorney General Opinion

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 CEC:mv:jcp:bh