Untitled Texas Attorney General Opinion

Honorable J; A. Amis. Jr: Opinion No. O-2226 County Attorney Rains County Re: Holding two offices--con- Emory, Texas stitutional provisions con- strued-- member, County B~oard of School Trustees and member of local com- munity committee, Agricul- tural Adjustment Administra- Dear Sir: tion. Your reqwast for .an opinion as to whether one per- son, at the same time may ser.ve as a member of the county board of school trustees and as a member of a local community committee operating under and suprrvised by the United States Department of Agriculture through the Agricultural Adjustment Administration, has been received and carefully considered by us. The determination of then question submitted must be grounded upon an interpretation of the provisions of the Texas Constitution. Section ,12 of Article 16 of the Constitution reads as follows : “No ~member of Congress, nor person holding or exercising any office of profit or trust, undrr the United States, or either of them, .or under any for- eign power, shall be eligtble as a member of the Leg- Mature, o,r hold or e%ercise any office of profit or trust under this State.” Section 33 of Article 16: “The Accounting Officers of this State shall .;either draw nor pay a warrant upon the Treasury in favor of any person, for salary or compensation as agent, officer or appointee, who holds at the same time any other office or position of honor, trust or Honorable J. A. Amis, Jr., page 2 profit, under this State or the United States, except as prescribed in this Constitution. * * *.” The pertinent provision of section 40 of Article 16 is as follows: ‘No person shall hold or exercise, at the same time, more than one civil office of emolu- ment, except that of justice of the peace, county commissioner, notary public and postmaster * * * unless specially provided herein * * * .” The election, qualification, service, duty and compensation of members of the county board of school trus- tees is prescribed by Title 49, Chapter 11 of the Revised Civ- il Statutes of Texas, 1925. as amended (Articles 2676 et seq., Vernon’s Annotated Texas Statutes.) Such members serve for a definite term, receive compensation on a per diem basis pay- able out of the State and County Available School Fund by war- rants drawn on order of the County Superintendent and signed by the President of the county board, and take the official oath of office. By Act of Congress, Public No. 430. Se.venty Fifth Congress. Chapter 30. Third Session, H. R. No. 8505, Title 1. Section 101. the Secretary of Agriculture was authorized to set up such regulations as might be required in administering the Agricultural Adjustment Administration program. Pursuant to such delegation of authority, in the Articles of Association, under which the various counties operate,‘provision is made for county and local committeemen to be elected by producers in the county upon their receiving a majority of the votes cast for the position to which they are elected. Local commtttee- ment are elected to serve from January 1 to December 31 of the current year, or until their successors have been duly elected. Local committeemen are not required to take an oath of office; they do not receive a stipulated salary, but are paid at a certain rate per diem for the days which they serve. (This inform,ation furnished per l,ettei, E. N. Holmgreen, Administrative Officer in charge, Agricultural Adjustment Administration, United States Department of Agriculture, College Station, Texas.) Honorable J. A. Amis, Jr.., page 3 Under the title “Public Officers”, Texas Juris- prudence gives the following statement~df the law: “Many judicial definitions of ‘public office’ are to be found in the reported cases, butthey are substantially of the same import. It is said to be a right to exercise a public function or employment and take the fees and emoluments belonging to it; ‘a publi: station or employment conferred by the appointment of government’; and ‘the right; authority and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign function of the government, to be exercised by him for ‘the benefit of the public.’ The individual so invested is a public officer. He is a person who exercises some functions of the government -- one who is commisl sioned or authorized to perform any public duty.” (34 Tex. Jur. 322). .From the case of Commissioners Court of Lime- stone County vi Garr’ett, (Corn. App.) 236 S. W. 970 at p. 972. we take thenfollowing quotation from Mechem on Public Officers: “Public officers are usually required by law to take the oath of office, and this fact goes far in determining the character of the duty. But the tak- ing of the oath is not an indispensable criterion, and the office may exist without it, for, as has been said, the oath is a mere incident, and constitutes no part of the office. * * *, If a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties per- taining to his station without any contract defining them, if those duties continue though the person be changed. it seems very difficult to distinguish such a charge or employment from an office or the person who performs the duties from an officer. * * *~ ” Honorable J. A. Amis. Jr., page 4 The same authority contains the following state- ment: y ‘A man is not the less a public officer where his authority is confined to narrow limits; for it is the duty .of his office and the nature of that.duty which make him an officer, a¬ the extent of his authority.’ See Me&em on Public Officers, § 9.” in the Supreme Court case of Kimbrough v. Bar- nett, 93 Tex. 310, 55 S. W. 122, is the following: ‘Public office is the right, authority, and duty created and conferred by law by which, for a given period either fixed by law or end,uring at the pleasure of the creating power, an individual is invested with some.,portion of the sovereign functions of the governm~ent to be exercised by him for the benefit of the public.” From the case of State of Montana, ex rel. Julius Barney v. R. N. Hawkins, Sacretary of State, ,251 P. 411. 53 A. L. R. 583 (1927) we quote: “After an exhaustive examination of the au- thorities, we hold that five elements are indis- pensable in any position of public employment, in order to make it a public office of a c%vil nature: (1) It must be created by the Constitution or by the Legislature or cremated by amunicipality or other body through authority conferred by the Leg- islature; (2) it must possess a delegation of a por- tion of the sovereign power of government, to be exercised for the benefit of the public; (3) the pow- ers conferred, and the duties to be discharged., must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an infereior or subordinate office. created Honorable J. A. Amis, Jr., page 5 or authorized by.the Legis,latpre, Andyby it placed under the general control of a superior officer or body; (5) it must haves some perma- nency and continuity, and not be only temporary or occasional.” That a member of the county board of school trustees holds an “office”; that it is an office of ‘profit or trust”; also an “office or position of honor, trust or profit” and a “civil office of emolument” is not open to question. See Hendericks v. State, (Civ. App.) 49 S. W. 705; Thomas v. Abernathy County Line Independent School District (Corn. App.), ~290 S. W. 152; Commissioners’ Court of Limestone County v. Garrett (Corn. App.). 236 S. W. 970; 34 Tex. Jur. 331 an~dcases cited under § 7. With the exception of the taking of an official oath, it appears to us that a member of a local community committee meets the presciibed essentials as an “officer” and holds an ‘office” within the contemplation of our consti- tutional inhibitions. According to Mechem’s statement, -quoted with approval by our Commission of Appeals in Limestone Coun- .ty V. Garrett, supra, the taking of an oath is not an indispensable criterion, all the other elements being present. As was said in our opinion No. O-490 on March 17. 1939: ‘The restraint against a person exercising or holding more than one civil office of emolu- ment might appear to be a manifestation of a super- abundance of caution on the part of the framers of the constitution, where the offices are not of major importance, or of high financial remuneration, as is the present case. On the other hand, said prohi- bition can amount to a protection of fundamental rights and liberties, and a bulwark of democratic institutions and principles. Consequently, regard- less of the personalities, offices and compensation involved, the constitutional mandate must be strictly obeyed.” Honorable J. A. Amis, Jr.. page 6 You are therefore advised that in our opinion one person may not, at the same time, hold the office of county school trtitee and act as a IocaI community committee- man under the Agricultural Adjtistmcnt Act. Yours very truly A-I’TORNEY GENERAL-OF. TEXAS By /s/ Benjamin Woodall Assistant APPROVED MAY 23. 1940 /s/ Gerald C. ‘Mann ATTORNEY GENERAL OF’ TEXAS :. BW:jti:da ,.. .&PROVED OPINLON COMMITTEE ‘. BY BWB Chairman