Hon. J. W. Edgar              Opinion NQ. V-1244
Commissionerof Eduoatlon
Texas Education Agency        Re: Legality of one person
Austin, Texas                     being at the same time
                                  both county school su-
                                  perintendentand super-
                                  intendent,principal,
                                  or teacher of an inde-
Dear Sir:                         pendent school district.
            Your request for an opinion reads in part as
follows:
           “We desire the opinion of your office
     conoernlng whether or not a superintendent,
     principal, or teacher of an independent
     school district may ai8o hold the office of
     county superintendentin the same county,
     either with or without compensation.”
          Section 40 of Artlole XVI, Constitutionof Tex-
as, reads 88 fQllOW8:
          "No person shall hold or exercise,
     at the same time more than one,,civilof-
     fice of emolumenC, except        (Excep-
     tions not pertinent in thl; &ion.)

            Dual office holding is express13 forbidden by
Section 40 of Article XVI, supra, where both offices are
civil offices of emolument, Whether a person declines
to accept the ralary of one such office, an.attribute of
 that offioe,‘oouldnot change the character of that of-
 fice of emolument to one of no emolument. Suoh subterfuge
.wouldnot be condoned to defeat or evade the prohlbition
of that constitutional provi8ion.

          Tt is also a fundamentalrule of law that one
person may not hold at the same time two offices the du-
ties Qf which are Incompatible,and this principle ap-
plies whether or not the offioe 1s named in the exception
contained In Section 40 of Article XVI, Con,stitutionof
Texas.~ Diencourt v. Parker, 27 Tex. 558
v. Drinkerhoff,M Tex. 45, 17 S. W. 109
Hon. J. W. Edgar, page 2   (V-1244)


v. Abernathy County Line Ind. School Dist., 290 S.W. 152
(T    C    APP. 5;~'&;
                 1      Fftt v. Glen Rose;I;d.,;chz;:
D$:, ,?%*Tex. 4
a,$-4957   (1942 , o-5145 (1943),'v-63(19471,V-1192
      .
          A county superintendent,of odurse, is a pub-
lic officer. He holds a civil office of ,emolument. Arts
2688, 2700, V.C.S.; Att'y Gen. Op. V-759 (1949).

          It has been held that a superintendentof an
indepexidentschool district holds a public office and
that it Is 'a~civlloffice of emolument. Klmbrough v.




is paid out of'local'funds,bf the district, including any
State aid funds for which the distP$ct is eligible and
has made~applicationiinderSenate bill 1~6, Acts 51st Leg
R.S. 1949, ch. 334, p. 625.  Artsi2922114, 2827,v.c.s.
     'In the case of Pruitt v. Glen Rose'Ind. School
Dist    126 Tex.'45, 84 S W 2d 1004 1007 (mj5) the court
xs'the     following rule'sknmayize~in 34 Tex. iur. 354,
 Public Officers, Sec. 19:
            "Having elected to accept ,andqualify
       for the second office, Ipso facto and as a
       matter of law, he vacates the first office.
       ,ThlsIs true; where both office8 are places
       of emolument,,re,gardlessof whether they are
       lncomfiatlble,arldif they are lnbompatlble
       there is a vacation of the first 'dffldere-
       gardless of whether both are offices of.emol-
       ument within the meaning of the Constitution.
       In such circumstancesthe constltutldnalpro-
       vision that all officers shall continue to
       perform the duties of their offices until a
       successor has been qualified does not apply,."
          Accordingly,by virtue of the prohibition of
Section 40 of Article XVI of the Constitution;we agrees
with you that one person may hot at th$ same,tinie
                                                 legal-
ly hold both divll'offlcesof emolument, the 'officeof
.’   ,




 Hon. J. W. Edgar, page 3 '(V-1244)




 county superintendentand the office of superintendent
 of an Independentschool district.
           In Attorney General's Opinion O-4669 (1942),
 informationreceived fromthe State Department of Educa-
 tion was quoted as follows:
              "There are two types of school prin-
         cipals: those that work In a large school
         system under the direction of a local super-
         intendent,and those who are in charge of
         schools in rural areas that come under the
         jurisdictionof the county superintendent.
              ,"Schoolprincipals are consideredhead
         teachers who are held responsible for admin-
         istering the schools which are under their
         control or supervision. Their duties are
         both administrativeand supervisory. A
         great many such principals usually teach
         all or part of the time."
 The opinion concluded that a school principal is but a
 head teacher, that a school principal does not as such,
 hold an office. See also Art. 2922-13, subd. f6), V.C.S.
           A school teacher is not a public officer and
 does not hold, as such, a civil office of emolument.
 Martin v. Fisher, 291 Pac. 276 (Cal.Dist.Ct.19 0); Ley-
            son, 288 Pac. 859 (Cal.Dist.Ct.19303 ; 37.
 ~~%k6~e~ig$$i                 ~_"~~~,g~,4",p"~0;32~~(~~~~~),
               and cases cite; therein. The'annotationin'
 75 A.L.R. 13$5 concludes: "The courts are almost unani-
 mous In holding that the positifn of a teacher is that of
 ~~~~o,~~7~"9~t~~~4~~,C~~;;~Ctig4~;t'Y  Gen. ops. o-4982

           Thus, the constitutionalprohibition against
 the holding of more than one office of emolument (Art. XVI,
 Sec. 40) would not apply to forbid one person from holding
 at the same time the office of county superintendentand
 the employment of principal or teacher in an independent
 school district. In Opinion O-4669, supra, it was held
 that one person could hold at the same time the office of
 county superintendentand the position of principal (head
                                                      ‘.




Hon. J. W. Edgar, page 4   (V-1244)




teacher) of a school district in another county. That
opinion stated that we are compelled to the conclusion
that the duties attached to the two positions (office
and employment),each being in a different county, are
not incompatible;but it would be a different situation
if both positions were in the same county. In Opinion
O-4669 neither of the posltlons there under considera-
tion Is subordinateto the other; neither is subject to
the supervisorypower or jurisdictionof the other.
            Opinion 2267 (1921)' Attorney General's Opin-
ions and Reports, Vol. 1920-1922,p. 445, held that it is
unlawful as against public policy, for a county superin-
tendent to hold a position as school teacher in a school
where it is his duty to approve the contract or voucher
of the teacher or teachers. It was never contemplated
by law that a county superintendentshould approve his
own vouchers and his own contract. Thus, on the prlnci-
ple of incompatibility,a county superintendentlegally
could not hold at the same tjme in the same county the
employment of a teacher or principal of a common school
district or an independentschool district having fewer
than one hundred and fifty scholastics. Art. 2763, R.C.
s    1925; Arts. 2629, 2693, 2749. 2750, 2750a-1, 2751,
v-t
  . .s 0; Knuckles v. Board of Education of Bell County,
274 Ky. 431 114 S W 2d 511 (193tl) Richardson v. Bell
County Boa& of Ed&&ion, 296 Ky.'520, 177 S.W.2d o/l
(19441.
           Furthermore,Article 2690, V.C.S., provides as
follows:
          "The County Superintendentshall have
     under the direction of the (State Commlssion-
     er of Education), the Immediate supervielon
     of all matters pertaining to public education
     1n his county. He shall confer with the teach-
     ers and trustees and give them advice when
     needed, visit and examine schools, and deliver
     lectures that shall tend to create an interest
     In public education. He shall spend four days
     each week vlsl.tingthe schools while they are
     in sesslon, when it is possible for him to do
     so. He shall have authority over all of the
     public shcools within his county, except such
     of the independentschool dl,strictsas have a
     scholasticpopulation of fjve hundred or more.
     In such indenendentschool districts as have
     less than five hundred scholasticpopulation,
Hon. J. W. Edgar, page.5 (V-1244)




     the reports,of the principals and treasurers
     to the State Department of Education shall be
     approved by the county superintendentbefore
     they are forwarded to the (State Commissioner
     of Education). All appeals in such independ-
     ent school districts,,shalllie ~mhe   county
     superin?endent,. .     (Emphasis.added; mat-
     ter in parenthesis substitutedfor "State Su-
     perintendent.")
See also Arts. 2691, 2746a, V.C.S.
          Under these statutes It is apparent that a coun-
ty superintendenthas broad supervisoryand appellate func-
tions with respect to.independentschool Mstricts in his
county which have less than five hundred scholasticpopu-
lation. Clearly, the positions of teacher and principal
(head teacher) In an independentschool district having
less than five hundred scholastics,are subordinateto the
office of county superintendenthaving jurisdictionthere-
of and are subject to the supervisorypower and jurisdic-
tion of the county superintendentas prescribed in those
laws. Therefore, based on the principle of incompatlbil-
Ity, it Is our opinion that one person could not at the
same time legally hold the office of county superintend-
ent and the position of principal or teacher in an inde-
pendent school district located in the same county and
having a scholasticpopulation of less than five hundred.
          However, there is no legal basis upon which it
may be said that one person may not, at the same time,
hold the office of county superintendentand the position
of principal or teacher in an Independentschool district
within the same county and having a scholasticpopulation
of five hindred or more. We have been unable to find any
statute providing,thateither positlon Is accountable.to,
,underthe dominion of, or subordinateto the office of
county superintendentsuch as would require the applica-
tion thereto of the principle of Incompatibility.
          This opinion is limited to the question submit-
ted and we do not pass on the propriety of a county super-
intendent holding at the same time another position, publj~c
or private.. Att'y Gen. Op. V-759 (1949). Your attention,
however, is directed to Opinion 2267, supra, released by
the Attorney General in 1921 In WhlCh its    said:
                                                 .   .




Hon. J. W. Edgar, page 6 (V-1244)




         "If a county superintendentshould
    teach school to the extent that his offi-
    cial duties are neglected, he would be
    guilty of offlclal misconduct, as defined
    by Article 6033 of the Revised Civil Stat-
    utes of this State. After providing that
    county officers (which term would include
    the county superintendent)may be removed
    for official misconduct, the statute de-
    fines the term 'officialmisconduct' as
    follows:
         "'By "officialmisconduct," as used
    In this title with reference to county of-
    ficers, Is meant any unlawful behavior in
    relation to the duties of his office, wll-
    ful in its character, of any officer in-
    trusted in any manner with the adminlstra-
    tion of justice, or the execution of the
    laws; and under this head of official mls-
    conduct are included any wllful or corrupt
    failure, refusal or neglect of an officer
    to perform any duty enjoined on him by law.'
         "The duties of the county superintend-
    ent are many, but I call your particular at-
    tention to the fact that that official has,
    under the direction of the State Superln-
    tendent of Public Instruction,the Immediate
    supervisionof all matters pertaining to
    public education In his county. He shall
    confer with the teachers and trustees and
    give them advice when needed, visit and ex-
    amine schools and deliver lectures that shall
    tend to create an interest in public educa-
    tion. (Art. 2752, Revised Civil Statutes)
    This article of the statutes contains the
    following language: 'He shall spend as much
    as four days In each week visiting the schools
    while they are in sessidn, when it is possi-
    ble for him to do so.'
         'He has many other duties, and it Is
    difficult to understandhow a county super-
    lntendent could hold a position of teaching
    in the public schools and at the same time
    not be guilty of official misconduct as de-
    fined by the statute above quoted. The fact
Hon. J. W. Edgar; page 7 (V-1244)




     alone that he is required to spend four
     days a week in visiting the schools when
     possible for him to do so would, It seems
     to us, preclude him from holding an ordl-
     nary position as teacher In the public
     schools of the State and at the same time
     perform his own official duties.
          "It would'be, however, a question of
     fact as to whether in a particular case a
     county superintendentwould be guilty of of-
     ficial misconduct through neglect of duty,
     under the statute, and thematter should be
     determined in connectionwith all the facts.
     The nature of the position of teaching will
     be considered in determiningwhether a coun-
     ty superintendentcould hold such a wosition
     and at the same time not be guilty of neglect
     of official duty."
The statutes cited therein are In the Revised Civil Stat-
utes of 1911. Similar laws on the same subject are now
codified in Vernon's Civil Statutes as Articles 5970,
5973, and 2690.
                       SUMMARY
          One person may not hold at the same
    time the two civil offices of county school
    superintendentand superintendentof an in-
    dependent school district. 'Iex.Const. Art.
    XVI, Sec. 40; Arts. 2688, 2700; V.C.S.; Kim-
    brough v. Barnett, 93 Tex. 301, 55 S.W. 120
     1902 ; Att'y Gen. Ops. G-7323 (1946), V-759
    I1949 1.
         One person may not hold at the same
    time the office of county superintendentand
    the position of principal or teacher in an
    independentschool district of that county
    when the district has a population of less
    than five hundred scholastics,since the
    teachers in such districts are under the
    direct supervisionof the county superin-
    tendent. This may be done In a district
    with a population of,five hundred or more
    scholastics,since such districts are not
    under the control of the county superintend-
    ent. Art. 2690, 2691, V.C.S.; Att'y Gen.
                                                  -     ‘L




Hon. 51 W. Edgar, page 8 (V-1244)




    Op. 2267 (1921) in AttcrrneyGeneral's Opin-
    ions and Reports, Vol. 1920-1922,p. 445;
    Att'y Gen. Op. O-4669 :(1942).
APPROVED:                           Yours very truly,
J. C. Davis, Jr.                  PRICE DANIEL
County Affarls Division         Attorney General
Everett Hutchinson
Executive Assistant
                                By
Charles D. Mathews              Chester E. Olllson
First Assistant                           Assistant
CEO:mw-lcr
