Honorable T. M. Trimble
First Assistant
State Superintendent of Public Instruction
Austin, Texas
Dear Sir: Opinion No. O-7191
Be: Whether a County Auditor may
legally serve as a trustee of a
common school district.
Your letter of April 1, requesting an opinion of this department, reads
as follows:
ttInview of the fact that county auditors do on many
occasions audit the 'booksof common school districts
which are kept in the oPf,iceof the county superintendents,
could a county auditor legally serve as s trustee of a
co-n school district?"
The following statutes pertain to the duties of the county auditor as
they relate to the common school districts:
*Art. 1652. School Ledger -- The auditor shall install
in his office a school ledger showing as accurate account
of all funds received and disbursed by the common school
districts of his county: a bond register showing all the
school bonds issued by the common school districts of his
county, their rate of interest, dste issued and maturity
date; and he shali also keep an interest and sinking
fund account of such school bonds.
"'Art.1653. To examine accounts. -- He shall have continual
access to and shall examine all the books, accounts, reports,
vouchers and other records of any officer, the orders of
the commissioners court, relating to finances of the county,
and all vouchers given by the trustee of all coc~lonschool
districts of the county and shall inquire into the
correctness of same.11
This department has heretofore held that it is mandatory that the
county auditor keeps the school ledger mentioned in Article 1652,
supra. Opinions, O-2734 approved September 23, 1940, 0-2734-A,
approved November 7, 1940, and 0-3660 approved July 22, 1941.
Honorable T. M. Trimble, page #2 (o-7191)
Your request presents the question of incompatibility in the two offices,
the rule as to such being summarized in 34 Tex. Jur., page 354, as
follows:
%aving elected to accept and qualify for the second office,
ipso facto, and as a matter of law, he vacates the first
office. This is true, where both offices are places of
emolument, regardless of whether they are incompatible,
and if they are incompatible there is a vacation of the
first office regardless of whether both are offices
of emolument within the meaning of the constitution. In
such circumstances the constitutional provision that
all officers shall continua to perform duties of their
office until a successor has been qualified does not apply."
Trustees of a common school district are "public officers" and must
subscribe to the oath prescribed in the constitution. 37 Tex. Jur.,
page 935, Sec. 68.
In the case of Williams vs. Thompkins, 42 S. W. (Zd) 106, the court defirkes
"audit" as means to hear, determine, and adjust or certify, and an "audit"
means that an official examination has been made of an account or claim.,
comparing vouchers, charges, and fixing the balance.
We deem it unnecessary to go into or discuss the various duties and
statutory provisions relating to trustees of common school districts
be@nning with their powers granted in Article 2747 and following,
Suffice to say that the county auditor's duties cannot be said to be in
no manner inconsistent and never in conflict. The very nature of the
office requires such officer to hold himself aloof of any possible
conflict or inconsistency, it being his duty to questionarlgirregularity
or inaccurate accounting of school funds, as reflected from the books,
accounts, reports, and vouchers of the school district or county
superintendent's office.
In conference opinion No. 1824, Book 50, page l-7 Reports of the
Attorney General, rendered June 27, 1927, to the Hon. H. L. Washman,
County Auditor, Houston, Texas, it was held as follows:
“FIis(the county auditor's authority to examine into the
correctness of such vouchers to our minds was conferred merely
for the purpose of giving him the right to audit such vouchers,
and if in his judgment, the same were unlawfully drawn to
report the same to the proper authorities of the county, for
such action as might be indicated thereby."
Honorable T. M. Trimble, Page 3 (O-7191)
The relative duties respecting the two offices of County Auditor and
Trustee presents e stronger cese of incompatibility by analogy then
presented in Thomas et al vs. Abernathy County Line Independent School
District, 290, S. W. 152. The County Auditor would be auditing the
books, accounts, etc., of the Board of Trustees of which he wes e
member.
In answering your request, it is therefore the opinion of this department
that * county auditor cannot legally serve es e trustee of e common
school district, the two offices being incompatible.
Yours very truly
ATTORNEY GEXERAL OF TEXAS
s/Wm. J. R. King
BY
Wm. J. R. King
Assistant
WJRK:JCP/ldw
APPROVE APR. 17, 1946
s/ Grover Sellers
ATTORNEY GENERAL OF TEXAS
APPROVED OPINION
COMMITTEE
BY B. W. B.
CHAIRMAN