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February 5, 1947
Hon. T. M. Trimble, First Assistant
State Superintendent of Public Instruction
Department of Education
Austin, Texas A. 0. Opinion No. V-63
, He: County Commissioner, au-
thority to serve as trus- ,
tee of independent school
id district.
.? Dear Sir:
We refer ~you to your letter of recent date
wherein you requested an opinion of this department eon
- r.i theYfollowing submitted question:
_
-- .,
-: May a County Commissioner serve at
the same time as trustee of-an independent
school district?
Article XVI, Section 40, Constitution of Texas,
reads as follows:
"No person shall hold or exercise, at
: the same time, more than one civil office of
emolument, except that of . . . county commis-
si0ni.w . . . I*
Dual office holding is expressly forbidden by
Section 4O;Article XVI of the Constitution where both
offices are civil offices of emolument. Dual office hold-
ing is forbidden to an extent at.least by Section 33 of
Article XVI wherein the accounting'officers of the State
are forbidden to issue or pay a warrant upon the Treas-
urer for the paymentsof salary or compensation to a
civil officer, who at the same time holds another of-
fice of honor. trust, or profit under the United States
or the State of Texas.
The Constitutional prohibition against the
holding of more than ~ohe office of emolument (Article
XVI, Section 40) isinapplicable to the question;under
consideration for tvio reasons: (1) The office of Coun-
ty Cmmissiocei i; expressly excepted; (2) As the
trustee serves without compensation, his is not an
Hon. T. M. Trimble, Page ,2,~v-6)
office of emolument. State v. Martin, 51 S. W. (2d)
815; Attorney General Opinion o-3308. And since
neither a County Commissioner nor a trustee of an in- .
dependent school district are officers to be paid out
.of the State Treasury, we do not believe Article XVI,
Section 33 of the Texas Constitution is violated un-
der the facts submitted. Attorney General Opinion Ro.
O-3308 and O-3352.
Bowever, it is aiso a fundamental rule'of law
that one person may not hold at one time two offices,
the duties of which are incompatlble~,and this princi@s
applies nhether or notthe office is.named in the excep-
tion contained in Article.XVI, Section 40, Bieacourt V.
Parker, 27 Texas 558; State v. Br~inkerhoff,,66Texas 45;
Thomas v. Abernathy Countg~Line Independent School Dis-
.- trict; 290 3. W; 152; Attorney General Opinions Numbers
O-4957 and O-5145. -'Pruitt-v.Glen Rose Independent
School District, 84 S. W. (Zd) 1004.
This principle ef flaw, incompatibility of of-
!&es, is expressed clearly-.in22 R. Ct L. 414, par. 56;
we quota from Knuckles v. Eoard of Educationof Bell.
County, (IZentucky)114 3. W. (2d) 511, at page 514.,as
follows:
"One of the most important tests as to
whether offices are -incompatibleis found in
the principle that.the incompatibility is rec-
ognized whenever one is subordinate to the oth-
er in some ofits important and principal duties,
or iS subject to supervision by the other, or
where a contrarity and antagonism would result
in the attempt by one person to discharge the
duties of both. Under this