           TRF,     ATI-OICNEY          GENERAL
                         OF   TEXAS




Ronorable,Jamer U. Cross                Opition&&-1146
Executive Director
Texas Parks liWildlife Department       Re:   Whether   a Commissioner on
John II. Reagan Building                     the~:Texas -Parks and Wild-
Austin, ,Texas 78701                         1ifeRoard may simultane-
                                             ously serve~on the board
                                             of an independent school
Dear Mr. Cross:                              district-~:
                                                          ^.
                                                          ,.
           Your ,request for an opinion on'the.aboveVsubject matter
reads in part,as:follows:                         -:
                                                   i..
                                                     :   !. '
                                                      , I?17.
            'One of our Conmissioners was-on the,Roard of
      an IndependentSchool     District prior'to-this ap-
      pointment.as a Parks and Wildlife Commissioner. .,
      He-is.still serving on such School Board in the.
      same .term in which he was serving when appointed
      to the Parks and Wildlife Commission;5'~ I:.
                                                          I. \
            'He has received no pay, expenses, per diem,          '
     .or:compensation of any kind from,.either :bf said
      positions;:and:.this matter is not in litigation.
                .', ._.#
                       '. .
           ."Is~thisConmissioner     legally se&ins .on the
      Parks and Wildlife Commission?      If.:not;why not?
      If he can serve, are there any special conditions
      attached~ tosuch~service?!'            ‘,,:7.'
                                                   :
              ~,'
               i,.i:.'i
                     :
            Section 40 of Article XVI; Co&titution,of         Texas, pro-
hibits the holding of more than one civilboffice of emolument.
                                            " ‘i
            Prio&o'the     1967 amendment; Section 33 of Article XVI
of the Constitutionof      Texas. provided in~part:

            "The Acco&zing~Officers  of this~State:sliall
     neither.draw   nor pay a warrant-:upon.the Treasury
     in favorlof-.,anyperson, for salary.orcompensation
     as agent, officer or appointee, who holds at the
     same time any other office or position of honor,
     tr.ust or profit, under this State, or the United
     States, except as prescribed in this Constitution.
      . . .II
                               -5581-
Hon. James U. Cross, page 2     (M-1146)



          The 1967 amendment to   SsCtiOn   33 of   i4rtiCle   XVI added
the following provision:

         "It is further provided, until September 1,
    1969, and thereafter only if authorized by the
    Legislature by general law under such restrictions
    and limitations as the Legislature may-prescribe,
    that a non-elective State officer or employee may
    hold other non-elective offices or positions of
    honor, trust, or profit under this State or the
    United States, if the other offices or positions
    are of benefit to the State of Texas or are re-
    quired by State or federal law, and there is no
    conflict with the original office or position for
    which he receives salary or compensation.   No
    member of the Legislature of this State may hold
    any other office or position of profit under this
    state, or the United States."

          Pursuant to the 1967 amendment, Article 6252-9a, vernon't
Civil Statutes, was enacted stating the conditions under which a
nonelective State officer may hold other nonelective offices.

          In Attorney General's opinion M-409        (1969) it was
pointed out:

          "In determining what constitutes an office, within
     the meaning of a constitutional provision, this office
     has frequently applied the criteria set forth in Barney
     v. Hawkins, 79.Ront. 506, 257 P. 411, 53 A.L.R. 583
     (1927), to wit:

          *'After an exhaustive examination of the au-
     thorities, we hold that five elements are indis-
     pensable in any position of public employment, in
     order to make,it a public office of a'civil nature:
     (1) It must be created by the Constitution or by
     the Legislature or created by a municipality or
     other body through authority conferred by the Legis-
     lature; (2) It must possess a delegation of a portion
     of the sovereign 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 de-
     fined, directly or impliedly, by the Legislature or
     through legislative authority: (4) The duties must
     be performed independently and without control of a
     superior power, other than the law, unless they be

                              -5582-
Hon. James U. CrOsS, page 3      (M-,1146)



     those of an inferior or subordinate office, created
     or authorized by the Legislature, and by it placed
     under the general control of a superior officer
     or body; (5) It must have some,permanency and con-
     tinuity, and not be only temporary or occasional.'"

          Under the foregoing test membership on the Parks and
Wildlife Commission constitutes a nonelective office. Article
6067, Vernon's Civil Statutes. On the other hand, the office of
trustee of an independent school district is~an elective office.
Section 23.08, Texas Education Code.   The office of trustee of an
independent school district, however, is not an "office of emolu-
ment" within the meaning of Section 40 of Article XVI of the
Constitution of Texas.
dependent School Dist.,
on other grounds, 290              It is noted that on appeal
the Commission of Appeals of Texas held the offices of school
trustee and alderman incompatible and stated that ". . i.whether
the office of school trustee . . . is an office of   'emolument'
within the terms of section 40, art. 16, of'the Constitution,
is immaterial, and in respect to that question we do not ex-
press or imply a conclusion."   (At p. 153).

          In view of the foregoing, a Commissioner on the Parks
and Wildlife Commission may at the same time.hold the office of
trustee of an independent school district. However, the Comp-
troller of Public Accounts may not issue him a warrant in pay-
ment of the compensation provided for in Item 1 of the appro-
priation to the Parks and Wildlife Department contained in the
current General Appropriations Act (p. 111-105, 36041, since the
1967 amendment of Section 33 of Article XVI.does not exempt from
its provisions an elective office.  Sovett v. Calvert, 467 S.W.211
205 (Tex.Civ.App. 1971, error ref. n.r.e.1; Attorney General's
Opinion No. M-193 (1968).

                         SUMMARY

         An individual may hold at the same time the
    nonelective office of Commissioner on the Parks
    and Wildlife Commission and the elective office
    of trustee~of an independent school district since
    the office of trustee is not an office of emolument
    within the meaning of Section 40 of Article XVI,
    Texas Constitution.  Section 33, Article XVI, of
    the Constitution of Texas, however, prohibits the
    Comptroller of Public Accounts from issuing to the


                              -5503-
Hon. James U. Cross,.page     4     (M-1146)



     Commissiqner any warrant in payment of the com-
     pensation provided in Item 1 of the appropriation
     to the Parks and Wildlife Depa




                                                   C. MARTIN
                                               ney General of Texas

Prepared by John Reeves
Assistant..Attoqney General

APPROVED:
OPINION COMMIT&

Kerns Taylor, Chairman
W. E. Allen ,I Co-Chairman
Roger Tyler
Marietta Payne
Scott Garrison
Jam$is-Quick

SAMURL D. MCDANIEL
Staff Legal Assistant

ALFRED-WALKER
Executive Assistant

NOLA WNITE
First Assistant




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