                                                            NE




                                   October     17, 1951


Hon. Murray H. Nance,              Jr.        Opinion No. V-1322
County Attorney
Grayson County                                 Re:   Eligibility of a member of the
Sherman, Texas                                       Board of Equalization  of an
                                                     independent school district to
                                                     serve on the County Board of
Dear     Sir:                                        School Trustees.

          In your request for an opinion you state that a person was
elected as a member of the Grayson County School Board in April,
1951, and qualified at the first meeting in May following the elec-
tion. Thereafter,    he accepted appointment by the Sherman Inde-
pendent School District to its Board of Equalization,   qualified and
served as a member of that board, receiving as compensation       for
such services    the sum of $250.00.   You then ask the following
question:

             Does a member of a county school board who ac-
       cepts, qualifies, serves, and receives compensation
       for service as a member of an equalization board of
       an independent school district vacate his office as a
       member of the county school board?

                Section 40 of Article       XVI of the Constitution    of Texas   pro-
vides:

            “No person shall hold or exercise,    at the same
       time, more than one Civil Office of emolument,      ex-
       cept . . . [exceptions not pertinent herein] ,”

                Article   2676,   V.C.S.,    provides   in part as follows:

             “The general management      and control of the pub-
       lic free schools and high schools of each county, un-
       less otherwise provided by law shall be vested in five
       (5) county school trustees elected from the county,
       . . . who shall hold office for a term of two years.     The
       time for such election shall be the first Saturday in
       April of each year; . . . All vacancies    shall be filled
       by the remaining trustees.     . . .”

                Article   2687.   V.C.S.,    provides   further:
Hon. Murray    H. Nance,    Jr., page 2      (V-1322)




           “The County School Trustees    shall hold meet-
     ings once each quarter, on the first Monday in Au-
     gust, February,  May and November,      or as soon
     thereafter as practicable,   and at other times when
     called . . . Each Trustee shall be paid Six Dollars
     ($6) per day, but not to exceed Seventy-two    Dol-
     lars ($72) in any one year, for the time spent in
     attending such meetings    . . .*

          Clearly,  under these statutes, a county school trustee
holds a civil office of emolument.    Att’y Gen. Ops. O-7323  (1946),
O-4628 (1942); Att’y Gen. Ltr. Ops. Vol. 241, p. 539 (1921).

          Under Articles       2791 and 2792, V.C.C., independent school
districts  which have their taxes assessed           by their own special tax
assessor   are required to provide a board of equaliiation            before
which the citizen is entitled to annear and be heard uoon anv as-
sessment    of his property.      MilleLrav. Vance, 107 Tex.b85,       180 S.W.
739 (1915); St. Louis Southwestern Ry. V. Naples Ind. School Dist.,
30 S. W.2d 703 (Tex. Civ. App. 1930) ; Att’y Gen. Op. O-3734             (1940.
Those statutes‘provide       for-the appointment of a board of equali&-
tion by the board of trustees of the independent school district.
They further provide that the board of trustees            shall have the same
power with reference       to the assessment       and collection of taxes for
free school purposes that are conferred by law upon the assessor
and collector    of taxes in and for any incorporated         city, town, or
village.  Thus, we are referred to Article 1048 providing for the ap-
pointment of a board of equalization,          to Article 1056 which provides
for compensation      of the board, and to Article 1060a, which makes
available all the provisions       of Title 122, R.C.S. 1925, in so far as
same may be necessary          to all school districts.     Republic Ins. Co.
v. Highland Fark Ind. School Dist., 129 Tex. 55, 102 S.W.Zd 184
TI9371. Article
I    I
                   7215, V.C.S..  _
                                     prescribes    the oath to be taken by
members     of the board of equalization.

            The definition of public office as used in Section 40 of Ar-
ticle XVI of the Constitution of Texas, defined in part by the Su-
preme Court in Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120
(1902)s is summarized      in 34 Tex. Jur. 322, Public Officers, Sec.
2, s.5 follows:

           “It is said to be a right to exercise  a public
     function or employment      and take the fees or emol-
     uments belonging to it; ‘a public station or employ-
     ment conferred by the appointment of government’;
     and ‘the,right,   authority and duty created and con-
     ferred by law, by which, for a given period, either
     fixed by Jaw, or enduring at the pleasure of the cre-
     ating payer, an individual is invested with some por-
                   sovereign functions of the government,   to
Hon. Murray   H. Nance,   Jr.,   page 3    (v-1322)




    be exercised  by him for the benefit of the public.’
    The individual so invested is a public officer.”

           A similar   statement of this rule may be found in Knox v.
 Johnson, 141 S. ,Ir.2d 698 (Tex. Civ. App. 1940, error ref.); m-
son v. tillis County, 84 S. W.2d 1097 (Tex. Civ. App. 1905); m.R.
-595;ic                   Offices and Officers (1889) 5.

          Applying that test here, it is our opinion that a member of
a board of equalization   of an independent school district (the mem-
bers thereof receiving   compensation   for service thereon) holds, as
such, an office of emolument within the meaning of Section 40 of
Article XVI of the Constitution of Texas.    Att’y Gen. Ltr. Ops. Vol.
382, p. 905 (1938); Att’y Gen. Op. O-3175 (1941). See Nalle v. City
of Austin, 56 S. N. 954 (Tex. Civ. App. 1900, error ref.); Zachary
v. City of Uvalde, 42 S.W.2d 417 (Tex. Comm.      App. 1931).

         In the case of Pruitt v. Glen Rose Ind. School Disk, 126
Tex. 45, 84 S. W.2d 10041935).         the court cites the foIlowing
rule summarized    in 34 Tex. Jur. 354, Public Officers,  Section 19:

           “Having elected to accept and qualify for the sec-
     ond office, ipso facto and as a matter of law. he va-
     cates the first office.  This is true where both of-
     fices are places of emolument,     . . . In such circum-
     stances the constitutional  provision that all officers
     shall continue to perform the duties of their offices
     until a successor   has been qualified does not apply.*

          Accordingly,   by virtue of thq’provisions   of Section 40 of
Article XVI of the Constitution,   we agree with you that one person
may not at the same time legally hold both the office of county
school trustee and the office of membership       on the board of equal-
ization of an independent school district.     Acceptance   of and qual-
ification for the latter office operates to vacate the former.




                                 SUMMARY

          By virtue of the provisions of Section 40 of Ar-
    ticle XVI of the Constitution of Texas, one person
    may not at the same time legally hold both the of-
    fice of county school trustee and the office of mem-
    bership on the board of equalization   of an independent
Hon. Murray   H. Nance.   Jr., page 4    (V-1322)




    school district,  and acceptance  of and qualification
    for the latter office operates to vacate the former.

                                         Yours   very   truly,

APPROVED:                                PRICE DANIEL
                                         Attorney General
J. C. Davis, Jr.
County Affairs Division

Jesse P. Luton. Jr.
Reviewing Assistant                      Chester    E. Ollison
                                                    Assistant
Everett Hutchinson
Executive Assistant




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