TEXEA'P~OEWEY GENERAL
OF TElxAs
This opinion overrules Opinions
O-4020 and O-4798 In so far aa
there Is conflict.
Hon. T.M. Trlmble, First Aaslatant
State Superintendent of Public
Inatructlon
Austln, Texaa
Dear Sir: glnlon No. O-7323
: Legality of a superintendent
of an Independent school dls-
trlct to serve at the same
.tlme on the County Board of
School Trusteea. Article XVI,
Sec. 40, Conat. of Texas.
Ye have your recent letter asking this question: “18 it
legal for a superintendent of an Independent school dlatrlct to
serve on the County Board of School Truateea of hle county at the
same time?” We answer: “No.”
Our reasons are as followa: Article XVI, Section 40, Texas
Constitution, prohibits with certain exceptions not material here
any person from holding, at the same time, more than one civil office
of emolument.
A county school trustee holds a civil office of emolument. See
Articles 2676, 2677, 2678a, 2681, 2683 and 2687, Vernon’s Annotated
Civil Statutes.
If the superintendent of an Independent school district also
holds a civil office of emolument, the reaaon for our answer Is
apparent. The difficulty lies 1n:drawlng the line between a “public
office” and a “public employment. ” The concepta are different but
the dividing line 1s often obscured by looae language and by the
Inadequacy of language aa a medium of conveying clearout Ideas. The
confusion 1s painfully evident In a paragraph In 34 Tex. Jur. p.
325, which attempta to dlatlngulah the two ldeaa.
Our Opinion No. O-4798 cited several caaea from other atates,
holding that school teachers and school principals are not “public
officers.” The opinion concluded that a district superintendent
llkewlae Is not an “officer” within the constitutional prohibition
above mentioned, but that the tax aaaeaaor-collector of the district
Is such an “officer” because our courts have ao held. pruitt v.
Independent School Dlatrlct (Comm. App.) 84 S.W. (2d)
Ert . Iioae
-
Hon. T.M. Trlmble, Page 2 (O-7323)
The Criminal Court of A peals In Oklahoma ‘expreaaly held (Kay
v. Stevenson, 111 Pac. 26 824 7 that a superintendent of an lndepen-
dent school dlatrlct la a mere employee hired under contract and la
not an official within the meaning of an act to punish those who com-
mit extortion under color ofofflclal right.
Our Article 2781, Vernon’s Annotated.Clvll Statutes, preservea
the confusion. It refera to such auperlntendents aa “employees”
. and as “executive officers.” The statute reads aa follows:
“The Board of Trustees of any city or town or any Independent
school district may employ a superintendent, principal, teacher, or
other executive officers In the schools therein for a term of not
to exceed three yeara, provided that the Board of Trustees of an
Independent school dlstrlct.whlch had a acholastlc population of
5,000 or more In the last preceding scholastic year may employ a
superintendent, principal, teacher, or other executive officers In
the schools therein for a term not to exceed five yeara. All twelve-
month contracts made by trustees of Independent school districts
with employees herein mentioned shall begin on July first and end on
June 30th’of the year terminating the contract.”
We now conciude that, despite the foregoing authorities, the
decisions of our courts require the holding that a auperlntendent of
schools In an Independent school district la holding an office wlth-
In the meaning of Section 40, Article XVI, Constitution of Texas,
and, to the extent that our Opinion No. o-4798 holds otherwise, such
opinion la overruled.
In Klmbrough v. Barnett, 55 S.W. 120, the Supreme Court of
Texas had before It this certified question:
“(1) Is the position of auperlntendent of the public schools of the
city of Houston an office for which a suit may be maintained In the
district court?”
The Court answered as follows: “We answer the first question
In the affirmative. The position of superintendent of the free
schools In the city of Houston Is an office, and the lawful Incumbent
of It would have a right of action to recover It or Its emoluments
In case he waa unlawfully deprived of the benefit.”
The court later reaffirmed this holding In Bonner v. Belsterl-
ing, 138 S.W. 571. The Court of Civil Appeals at San Antonio (Loa
Angeles Independent School Dlatrlct v. Whitehead, 34 S.W. 2d 895) and
the Court of Civil Appeals aa Austin (Temple Independent School Dls-
trlct v. Proctor, 97 S.W., 26 1047) both regard the position of a
superintendent of an Independent school district as an office for
which suit may be maintained. The Austin Court aays this point 1s
settled law and cites the Klmbrough case.
Since the courts hold that such superintendent holds an
“office”, It la a “~1~11 office of emolument,”
Hon. TiM. Trlmble, page 3 (O-7323)
Youra very truly
A'J3!ORNgyQENERALOFTEiXAS
By s/Donald Qay
Donald Gay
Assistant
W:BT:egw:wc
APPROVEDAUG 13, 1946
s/ Carlo8 Ashley
FIRST ASSISTANT
ATTORNEY GENESAL
This opinion considered and approved In limited conference.