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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<principle two of-
            fices are incompatible where the incumbent of
            one has the power to remove the incumbent of
            the other, though the contingency on which the
            power may be exercised Is remote, and It also
            exists where the incumbent of one office has
            the power of appointment asto the other of-
            fice, or to audit the accounts of anbthzr, or
            to exercise a supervision over another.
                 We have considered the statutes   relative to
      the respective duties incumbent upon a county commis-
      sioner and a 'trusteeof an independent school district,
      and we cati conceive of no sound basis   upon which it
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                                  Hon. T. hf.Tritible,Page 3, v-63


                                  may be said that their respective offices are lncom-
                                  pcltible. We have been unable to find any statute pro-
                                  vidin$ that either office is accountable to, under
                                  the dominion of, or subordinate to thenother, or
                                  which provides that~either office .has a right to in-
                                  terfere vith the other in the performnce of any of-
                                  ficial duty. Nor have;vs been appraised of’any rea-        .k..


                                  son why the duties of ‘a county commissioner would be
                                  inconsistent or in conflict with the duties OS a tms-
                                  tee of an independent school district.
                                            It is our opinion’ therefore that the two.
                                  offic’esin question are not’incompatibie, and that
                                  your submitted question should be, and is, answered
                                  in the affirmative.
         1. ~_;_.            _.    ,_
     ..-.   -.~                                        smm
                --   .

                                               One’person may hold at the same time
                                       both the offices of county commissioner and
                                       trustee.   of an independent school district,
                                       the said offices being not incompatible.
                                                                   Very truly yours,
                                                               ATTORRRY GRNERAL OF TEXAS

                                                                                $?y&$&)             :...’
                                                                                                        :.,
                                                               BY<      Chester E. Ollieon
                                                                                Aseistatlt
                                  mo:mtmrj
                                                               APPROVE3 PRB. 5, 1947


                                                               ATTORW    GERERAL OF TEXAS
                                                                                                    1   ..
                                                               APPROVRD OPWIOB COMMITTRB
                                                               BY BWR , CRAIRRAN
