. .-
Mr. V. C. Marshall, Administrator
State Soil Conserva tlon Board
6th Floor Professional Bullcling
Temple, Texas
Dear Sir:
Opinion No. i-3395
Re: Right of State or oounty
officer peld on salary basis
to serve as supervisor in a
Soil oonservatlon district
and receive pey for such
srrvloen.
1
Your letter of April 8, 1941, ‘requests the opinion
of this department upon the following questionr
Would an off’ioer of the State or of a oounty, who
is drawing a salary from the State dr fpbm’the county on a
monthly baals, be eligible to Z%OelVe p&y iihder the provi-
slona of the State So11 Conservatldn L&w fdr services ren-
dered es a supervisor In e soil oonservatlon dlatrlct?
Artlole XVI Seotlon 40, of th& State Constitution,
es amended November 6, 1932, read@ es follower
“NO person #hall hold or exerolse, at the
seme time, mars than on@ Civil Offlae of emolu-
ment, rxorpt that of Jurrtloe of Peaoe, County
Commisrloner, Notary Pub110 and Postmaster, Of-
fioer of the National Guard, the Netlonal @m?d
Reserve, and the Offloere Relervr Corps of the
United States and enlisted men of’ the Natlonal
clusrd, the National Ctuard Reserve, and the Organ-
lred Reserves of thr United State8; and retired
ofilorrs of the United States Army, Navy, and
Marlns oorp6, and ratlred warrant offioers, and
retired enlisted men of the United States Army,
Navy, and Marlne Corps, unless otherwise Upeoislly
provided herein. Provided, that nothing In this
Constitution ahell be oonetrued to prohibit an
offloer or enlisted man of the Netlonsl Ouard,
and the National G)uerd Reserve, or an offloer
In the Offloers Reserve Corps of the United
- .
Mr. V. C. Marshall, Administrator, page 2, (O-3395)
Statea, or an enlisted man In the Organiaed Reser-
ves of the United States; or retired officers
of the United States Army, Navy, and Marine
Corps, and retired warrant offloers, and re-
tired enllsted men of the United States Army,
Navy, and Msrine Corps, from holding in con-
juntlon with such office any otherofflce or
posltlon of honor, trust or profit, under this
State or the United States, or from voting at
any Election; General, Special or Primary, in
this State when otherwise qualified.”
Under this Article of the Constitution, any of
the offloes named In the exceptions mey be held In conjunc-
tion with any other offloe, whether auah other office Is
named in the exceptions or not. Qaal v:Townsend, 77 Tex.
464, 14 S. W. 365. If neither of the two offloea of emolu-
ment are within the exoeptlons expressed In Article XVI,
Se&Ion 40, the two offloea may not be held almultaneously
yg one person. Odem v. Slnton Independent Sohool District
om. App.), 234 5. W. 1090; Pl?uitt v; Qlen‘Roae Inde endent
Sohool Dlatrlot No. 1 126 Tax; 45 84 S. W (26) lOO!
Torno v. Hoohatetler fClv. APQ,) ii21 9. w.‘623; East&d
County v. Haael, (Civ. App.), 2& S.~W. 518. Where the two
offioea oannot be held by the same person, eooeptance and
quellfloatlon for the aeoond offlca operatea Ipso faoto aa
e resignation of the former offloe. Peultt v. Glen Roae In-
dependent Sohool Dletriot No. 1, supre.
Under Artiole XVI, Seation 40, of the Constitution,
if a aupervlaor in the soil aonaervatlon dlatrlot holds “of..
f 106 of emolument”, auoh peraon oannot at the ~aame time hold
or exerolae 8 State or oounty offiae of emolument unless the
other State or oounty offloe of emolument La one whioh la
named in the exoeptlon provided to Artlole XVI, Seotlon 40,
of the Constitution, Slnoe, under auoh olroumatenoea, the
aame peraon oould not hold or exeraiae both offloea, It neo-
eaaarily follows thrt he oould not reoelve the oompenaation
attaohing to both. To determine the apglloablllty of Article
XVI, Seatton 40, to your queatiOn0, therefore, It beoomea
neoeaaary to Oonaider whether a auperviaor in a a011 oonaer-
vrtlon dlatriot holda an “offloe of em01ument”.
The orlterla for determining whether a publio
employment la a public offloe of a 01~11 nature are well
stated In the oaae of the State of Montena, ex rel. Julius
Barney v. R. N. Hawklna, Seoretary of State, 257 Pac. 411,
53 A. L. R. 583:
Mr. V. C. Marshall, Administrator, Page ji (O-3395)
'"After an exhaustive examination of'the
authorities we hold that five elements are in-
dlspensible in spy position of public employ-
ment, in order to make it a public office of
a civil nature: (1) It must be create,dby the
Constitution or by the legislature or created
by a municipality or other body through author-
ity conferred by the legislature; (2) It must
possess a delegation of a portionof the sover-
eign power of government, to be exercised for
the benefit of the public; (3) The powers con-
ferred, and the duties to be discharged, must
be defined, directly or impliedly, by the le -
islature or through legislative authority; (fi)
The duties must be performed Independently and
without control of a superior power, other than
the law, unless they be those of an inferior
or subordinate office, created or authorized by
the legislature, and by it placed under&e genera1
control of a superior officer or body; (5) It
must have some permanency and continuity, and
not be only temporary or occasional."'
See also the a,uthoritiescited in our opinions
Nos. o-518; and O-490, copies of each of which are enclosed
herewith.
An examination of the provisions of the Soil Con-
servation Act, (Arts 1939, 46th Legislature, page 7) and
particularly Sections 5, 6, 7, 8 and 9, of that Act, convinces
us that the supervisors of a soil conservation district hold
civil offices of emolument. By the Act, such districts are
constituted governmental subdivisions of this State and pub-
lic bodies corporate and politic; governing body of the dis-
trict is made to consist of five supervisors; a method by
which such supervisors are selected is described in detail;
the term of office of each supervisor is prescribed by the
Act and the Act provides that each supervisor shall hold
his office until his successor has been elected and has
qualified; the Act provides that each supervisor may re-
ceive compensation for service on a per diem basis and the
necessary expenses incurred for services other than those
performed within the district; the supervisors are given
authority to employ such officers, agents and employees,
Mr. v. C. Marshall, Administrator, Page 4, (O-3395)
permanent and temporary, as they may require, and to deter-
mine their qualiilcatlons, duties, and compensation and to
delegate to such agents or employees as they may employ and
select, such powers and duties as they may deem proper; and
the powers and duties public in character, to be exercised
by the supervisors 88 the governing body of the district,
are specifically provided in great detail by the Act. It
thus appears that eaoh of the criteria essential to the ex-
istence of a public office as set forth in the Woontanacase
above referred to, exists with respect to the supervisors
of the soil conservation districts.
Since we have determined that the supervisor of
a soil conservation district holds a public office, within
the meaning ol Article XVI, Section 40, and since itis
manif'estthat such office is civil rather than military in
character, theily question remaining to be declded~to de-
termine the applicability of Article XVI, Section 40, to such
office, is whether such civil office is one of emolument.
The term "emolumentn means a pecuniary proftt,
gain or advantage. 34 Texas Jurisprudence, page 349. The
supervisors of the soil conservation districts are entitled,
under the provision of the State Soil Conservation Ac,t, to
receive compensation !'forservioe not to exceed Pour Dollars
($4.00) for each day he shall be In actual attendance upon
the duties of the office wtthin the district, not to exceed
twenty (20) da s in any one calendar year, and not to exceed
Four Dollars (i 4.00) a day and the necessary expenses ln-
curred for services other than within the distrlct;~.except
by approval OS the State Board." It is our opinion that
the compensation or remuneration provided by law for super-
visors Is clearly a pecuniary prof'it,gain or advantage,
and that such civil office is therefore an office of emolu-
ment, within the meaning of Article XVI, Section 40, of our
Constitution.
We trust that the foregoing will answer your question.
Very truly yours
ATTORWEY GENERAL,OF TEXAS
/s/ R. W. Fair6hild
BY
R. W. Fairchild
APPROVED APR. 23, 1% Assiatant
/a/ Grover Sellers
FIRST ASSISTANT APPROVED
ATTORNEY GENERAL OPINION
COMMITTEE
By B.W.B.
RWFrLMrELB Chairman
Untitled Texas Attorney General Opinion
Combined Opinion