                           E                Y    GENERAL


                               A~JSTIN   PI. TEXAS
GROVE8 SELLERS
A-a-l-“RNEY   G*:~Ex~Al.




        Honorable Maxwell Welch
        County Attorney
        County of Bowie
        Boston, Texas
                               Opinion NO. O-7396
                               Re: Eligibility of districts to par-
                                    ticipate in equalization funds
                                    where the County Board has oper-
                                    ated a transportation system on
                                    a strictly county unit basis and
                                    has employed and paid teachers
                                    and principals out of the County
                                    Board Transportation Fund for
                                    services rendered under con-
                                    tracts with the County Board.
       Dear Sir:
                 In your letter of August 17, 1946, you have re-
        quested an opinion from this Department relative to the
        above subject. Therewith a brief was submitted to the ef-
        fect that a previously issued Attorney General's opinion
        (O-6797 dated May 1.6,1946) is not applicable to a school
        transportation system operated on a county unit basis.
                 The above mentioned opinion was Issued in answer
        to a specific state of facts involving a one-teacher school
        located in a district which operates its own transportation
        system and in a county where no county unit system of trans-
        portation exists, and it held in substance that under the
        provisions of Senate Bill 167, Acts, 49th Legislature,
        1945, chapter 361, page 639, a school district would be
        ineligible for any type of aid (except tuition) under the
        act if it were to pay to a teacher who was also perform-
        ing administrative duties an additional salary as a bus
        driver. This opinion was based principally upon a pro-
        hibition contained in the above cited act.
                 The question for determination here is whether a
        distinction is to be made in the application of the provi-
        sions of the act between the operation of a district and
        a county unit system of transportation and whether the pro-
        hibitions are applicable to a transportation system operated
                                                         .    f.




Hon. Maxwell Welch, page 2          0 -7396


on a county unit basis by the County Board.
         Retween these two kinds of systems many differences
exist.  In the operation of a transportation system by the
district, the District Board not only contracts with the
teachers for their base salaries and makes additional allow-
ances for their performing administrative duties, but this
Board also employs bus drivers and in many instances owns
the equipment, contracts for repairs and pays the expenses
of operation. In contrast to this, some particular facts
regarding the operation of a county unit system were pre-
sented in your letter as follows:
          "The Bowie County School Board acting under S.B.
     167 has set up a county unit system of school trans-
     portation for Bowie County, Texas. Under this system
     the County Board employs all drivers, purchases all
     equipment, contracts with all private carriers that
     are used, contracts for all repairs, employs a trans-
     portation manager, designates all routes, designates
     all stops, and in fact handles everything that has
     to do with school transportation in the county. All
     funds are credited to the County Board Transportation
     Fund and all drivers, all bills, and all other trans-
     portation costs are paid directly from this fund by
     the County Board.
         For the purposes hereof the principal difference
between the operation of these two systems as set forth
above is that in the district system, the District Board
makes all contracts and pays all salaries, including those
for the services of bus drivers whlle,in the county unit
system, the employment of bus drivers and the payment of
their salaries is handled Independently by the County Board
without regard to the employment of teachers and the making
of additional allowances by the District Board. In the
light of this difference, th,eapplicable provisions of the
act may be considered.
          In Article I, Sectlon~l, paragraph 4, it is pro-
vided:
          "No school district will be eligible for any
     type of aid, except tuition aid, under the provi-
     sions of this Act, which nays any salary above those
     specified in this A-t from any state. local. or
     Federal funds whatsoever except Federal funds, used
     to supplement salaries of Vocational Agriculture;
     Home Economics and Trade and Industries teachers,
     and funds from the Federal Lanham Act. (Emphasis Supplied)
-r     .




     Hon. Maxwell Welch, page 3         o-7396


               This provision prohibits school districts from
     receiving aid under the act if salaries above those speci-
     fied and paid. That this prohibition is directed exclu-
     sively to the districts appears snot only from ths above
     quoted paragraph but also from an examination of the excep-
     tions to this prohibition contained in the following para-
     graph 5 where, in regard to the specific question of the
     employment of teachers as bus drivers, \it is provided:
         II. . . further, that teachers who also serve as
         bus drivers, but who perform no administrative
         duties, may be paid an additionaJ-~salaryas bus
         drivers out of any funds of the district derived
         from a local maintenance tax in excess of the local
         maintenance tax of Fifty Cents (50d) on the One
         Hundred Dollars ~$100.00) valuation required to be
         levied by Section 2 of Article I hereof; provided
         further, j&attheeadditional salary oaid for serv-
         ing as bus driver shall conform to the salary
         scale uaid other bus drivers of the district,and
         an itemized list of all such supplements shall be
         furnished the State DepartmerIt of Education and
         the Legislative Accountant with the eneral budget
         of the district." (Emphasis Supplied)
              Thus any doubt that the prohibition is applicable
     exclusively to districts could be resolved from the excep-
     tions providing that any additional salaries as bus driver-,
     are directed to be paid out of specific funds of the dis-
     trict derived from a specified local maintenance tax and
     that an itemized list of all supplements for the payment of
     bus drivers is to be furnished to the State Department of
     Education with the "general budget of the district."
              It will be noted that in both of the above quoted
     provisions of the Act, the compensation of bus drivers by
     the District Boards is considered to be "an additional
     salary' or the payment of a "a salary above those specified":
     and from these provisions the question is presented as to
     whether the making of separate contracts, and the separate
     payment of salaries on the basis thereof, by the County
     Board is to be construed as the payment by the district of
     such salaries so as to bring the independent operation of
     a transportation system by the County Board within the scope
     of the prohibition and, specifically, to impose the condi-
     tion that teachers may only be paid additional salaries as
     bus drivers if they perform no administrative duties.
              The separate and independent operation of a trans-
     portation system on a county unit basis by the County Board
     is authorized by the act in question. In Article Q thereof,
                                                            \   -




Hon. Maxwell Welch, page 4        o-7396


it is provided as follows:
   "The County Superintendent and County School Boards
   of the several counties of this state subject to
   the approval of the State Superintendent of Public
   Instruction, are hereby authorized to annually set
   up the most economical system of transportation
   possible for the purpose of transporting both grade
   and high school pupils from their districts, and
   within their districts. The county shall be re-
   garded as the unit and the warrant made payable to
   the County Board Transportation Fund, on the total
   transportation earned within the county not to ex-
   ceed the total approved cost thereof; and the
   County Board of Education shall distribute the funds
   equitably to the districts operatir& such transpor-
   tation system not to exceed the actual approved
   cost of any one (1) bus so operated. . e .


    "County Boards of Trustees are hereby authorized to
    employ bus drivers for one year, and the salary of
    no bus driver may be paid out of the County Board
    Transportation Fund created herein unless such bus
    driver is so employed. Provided further, that only
    pupils or persons directly connected with the school
    system shall be transported on school buses while
    in the process of transpor,tingpupils to and from
    the school, and any bus driver violating the fore-
    going provisions shall forfeit his contract and shall
    be immediately discharged by the County Board of
    Trustees. However, subject to the provisions herein,
    bus drivers who own their own buses, and are so em-
    ployed, may be given a contra& for not to exceed ,two
    (2) years, conditioned that said bus drivers agree
    to make improvements on their buses, so as to more
    adequately insure safer transportation for the
    scholastics, and the route of such bus in not changed
    for the second year of the contract.'
         In these provisions the County Superintendent and
the County School Boards are authorized to set up the most
economical system of transportation, and the warrant for
transportation aid is made payable to the County Board
Transportation Fund. The County Board is directed to dis-
tribute this fund equitably to the districts; however, in
the operation of a county unit system, this distribution is
not made, but the fund is disbursed directly for expenses
and equipment, including the payment of the bus drivers'
--     .




     Hon. Maxwell Welch, Page 5           o-7396


     salaries. It is also provided that the County Boards are
     authorized to employ bus drivers under certain conditions,
     and it is noteworthy that while conditions are imposed, no
     reference is made specifically to the employment of teachers
     as bus drivers.
               Comparing the provisions of the Act hereinabove
     set forth, it appears that it was intended by the prohibition
     and exception in Section 1 to limit the authority of the
     District Board to its making only one addition or supplement
     to a teacher's pay, but there is no reasonahle basis for
     construing this Limitation on the District Board as prohibit-
     ing the County Board from making separate and independent
     contracts with teachers even though they may perform admin-
     istrative duties. Indeed, if the prohibition and conditional
     exception is directed at preventing an abuse of the authority
     to pay supplemental or additional salaries, then certainly
     it would not obtain where t,heauthority to employ and pay
     teachers is separate and distinct from the authority to employ
     and pay bus drivers.
               Some time ago this office issued an opinion con-
     struing similar provisions under the 1941 School Aid Bill
     (Opinion No. O-4982 dated December 2, 1942), and it seems
     that the rationale thereof relating to the employment of a
     teacher as a bus driver is particularly applicab,lenow to
     the situation where the county employs the bus drivers in-
     dependently of the contracts made or salaries paid by the
     District Board. The following from this opinion is quoted:
           "It is our opinion that the provisions of the rural
           aid bill, quoted in your letter, would not be violated
           by such employment for the reason that the money re-
           ceived by the individual as bus driver is of an en-
           tirely different character-than that rsceived by him as
           teacher. In other words, the two employments are
           separate and distinct, and compensation received for
           performing under one employment c~ouldnot be said to
           increase the compensation received by such individual
           for performing under the other employment. It is
           therefore, our opinion that the salary received by'a
           teacher under his teacher's contract is not as such
           supplemented or increased by the compensation received
           by such perscn as bus driver.
           "Let us now examine the general law to see if there is
           any legal inhibition to a person's serving in both
           capacities. Section 40 of Article XVI, Constitution
           of Texas, prohibits the holding of more than one civil
           office of emolument. Rowever, a school teacher is an
Hon. Maxwell Welch, page 6         o-7396


    employee, not a public officer. Martin vi Fisher,
    291 Pac. 276; Mooty v. Belyee, 236 N.W. 358,75 A.
    L. R. 1347; Leymel v. Johnson, 288 Pac. 859; Clune v.
    School District, 166 N.W. Ii, 6 A. L. R. 736; Heath
    v. Johnson, 15 S. E. 980; State ex rel. Lewellen v.
    Smith, 69 N.W. 114; 56 C,J. 382; 37 Tex. Jur. 1035.
    Opinions No. O-371, No. o-4020, No. o-4669, No. o-4798.
    Neither is a bus driver a public officer. Opinion No.
    o-4957. It follows thstthe constitutional provision
    prohibiting double office holding is not applicable and
    in itself would not prevent one person's holding both
    the positions under consideration.
    'Section 33 of Article XVI, Constitution of Texas,
    prohibits the accounting officers of this State from
    drawing or paying 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 profit
    under this State or the United States, as therein
    specified. However, as the State accounting officers
    neither draw nor pay a warrant upon the treasury in
    favor of either the school teacher or the bus driver,
    this section is inapplicable.
   "The performance of the duties attached to each of
   these positions would ,necessarilgtake place at
   different times; that is, the bus driver's duties are
   performed before the commencement of and after the
   close of the school day as such. See Article 2906,
   Revised Civil Statutes. Thereis, therefore, no con-
   flict as to the time of performance of the respective
   duties, and after an examination of the relative stat-
   utes we are unable to discern any inconsistency or
   incompatibility between the duties of one position and
   those of the other.
   "You are,therefore, advised that 'a teacher employed by
   a school district may under the authority of Section
   4, Article V of the current rural aid bill be employed
   as a bus driver by the county board of school trustees
   and receive compensation out of the County Board Trans-
   portation Fund for the performance of such services,
   provided~,of course, the employment is real, and is in
   no way a subterfuge or means to supfllementthe salary
   received by such person as teacher.
          All of the foregoing considered, It may be cor~cluded
that the separate and independent employment of bus drivers
by the County Board and the payment of salaries for such
Hon. Maxwell Welch, page 7         o-7396


employment is not, under the provisions of the Act, the pay-
ment of an "ad,ditionalsalary" by the District or the payment
of a "salary above those specified" and that, therefore, the
prohibition against districts paying such salaries would not
be violated by the payment of separate salaries by the County
Board.
          Accordingly, you are advised that it is the opinion
of this office that County Boards operating a county unit
system of transportation may employ any eligible person as a
bus driver even though such person may already be employed
as a teacher and receive additional allowances for the per-
formance of administrative duties.
                               Yours very truly
                             ATTORNEY GENERAL OF TEXAS


                               By s/Jackson Littleton
                                    Jackson Littleton
                                            Assistant
JL:jt:wc



APPROVED OCT 7, 1946
s/Harris Toler
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/WVG Chairman
