                    September 17, 1962


Iionorab;e_Jerry
-   * nttorney Dellana            Opinion No. hW-1442
county
Travis County Courthouse         Re: Whether a person may hold
Austin, Texas                        the position of Tax Assesror
                                     and Collector of an independ-
                                     ent school district and at
                            _~~_     the same time hold such
                                     position in a county water
                                     control and improvement
Dear Mr. Dellana:                    district and related questlone.
         Your request for opinion from this office reads in part
as follows:
         qThe'Banes IndependentSchool District col-
    lects its own taxes and has employed a Tax
    Aeaeesor-Collector,who alao is employed 88 a
    Business Wanager of the Ranes IndependentSchool
    District.. This same Tax Assessor-Collectoraleo
    serves as Assessor and Collector of taxes of the
    Travis County Water Control and Improvement Dis-
    trict No. 10. Such employee does not re,sidein
    the.Eanes IndependentSchool District."
         "On March~3, 1959, Logan Cummings was hired
    by both the Banes Independent School District and
    Travis County Water Control and ImprovementDls-
    trlct No. 10 as their joint Tax Assessor Collector.
         "That he assumed the duties of both offices
    on March 3, 1959.
           "That all 1960 TaX Notices of both districts
    were   signed by Logan Cummings.
         "That Logan Cummings continues to this date
    to hold both offices.
         "That ~3.t
                  is the understandingof this Trustee
    that Logan Cummin 8 haa received a salary during
    this period from $1) Texas Education Agency (2)
    Eanes Independent School District (3) Travis
Honorable Jerry Dellana, page 2 (WW-1442)


     County Water Control and ImprovementDistrict No.
     lo.*
         "1. I8 the above mentioned employee inhib-
    ited by Art. 16, Sec. 40,.of the Texas Constitution
    or any other provision of the Constitutionor stat-
    utes from holding the following:
         "(a) The nosition of Tax Assessor and Col-
    lector of Ranes IndependentSchool District and
    Travis County Water Control and ImprovementDls-
    trlct Wo. 10 at the same time?
        ."(b) The position of Tax Assessor and Col-
    lector of taxes of Ranee IndependentSchool_Dls-
                                                 .
    trlct and Business Manager of Ranes Indepenaent
    School District at the same time?
         "(c)The positlon.ofTax Assessor and Col-
    lectorof Ranes School Matrlct,.Business Manager
    and .*ActingSuperintendent*at..thesame time?
         w2. Does the law require the Assessor and
    Collector of taxes for Ranes IndependentSchool
    District to live within the Panes Indenendent
    School Mstrlct as a qualificationto hold the
    office?"
          Section 40 Of Article XXI of the Constitutionof Texas
states as follows:
         "Holding more than office; exceptions;right
    to vote
         "Sec. 40. No person shall hold or exercise,
    at the same'tlme,more than one Civil Office of
    emolument, except that of Justice of Peace, County
    Commissioner,Notary Public and Postmaster,Offi-
    cer of the National Guard, .theNational Guard Reserve,
    and the Officers Reserve Corps of the United States
    and enlisted men of the National Guard, the National
    Guard Reserve, and the Organized Reserves of the
    United States,and retired offlcers of the United
    States Army, Navy, and.Marine Corps, and retired
    warrant officers, and retired enlisted m&:&f!
    the United States Army, Navy, and Marine Cor.ps,'
    unlees otherwise.speclall;yprovlded',here.Ln;.Provided
Honorable Jerry Dellana, page 3 (\+W-1442)


        that nothing in this Constitution shall be con-
        strued to prohibit an officer or enlisted man Of
        the National Guard, and the National Guard Re-
        serve, or an officer In the Officers Reserve Corps
        of the United States, or an enlisted man In the
        Organized Reserves of the United States, or re-
        tired officers of the United States Army, Navy,
        and Marine Corps, and retired warrant offlcere,
        a'd retired enlisted men of the United States
        A!my, Navy, and Marine Corps, from holding in
        conjunctionwith such office any other office or
        position of honor, trust or profit, under this.
        State or the United States, or from voting at any
        Election; General, Special or Primary, In this
        State when otherwise qualified." (Emphasis. added)
           As to your,questionl,(a), .numerousopinions from this
 office.haveheld that the positi,onsof Tax Assessor and Collector
 of a county, independent school district, or of a conservation
 distr.lctare all civil offices of emolument. Attorney General
 Opinions Nos. o-6%.(193g),  o-2687  (1940),    and WW-1295 (1962).
 Pruitt v. Glen Rose Independent School District, X26 Tex. 4.5, .84
   W 2d 1004 (1935)     W h  b      ffi      th    holdings and also
 h&!l that a'county'watk :%3(oEnd       ~~pro~~~entdistrict is a
 separategovernmental~authorityand similar to a conservationand
 reclamationdistrict; and that therefore two separate.officesof
 emolumentare.involved. It is therefore a~vlolationof Section
,40 of.ArticleXVI for the same person 'tom    hold both offic,esin
 question.
          We requested'specific informati,onas to when the man In
questionassumed the duties of one ~office,and when he assumed
the duties of the other. Your,reply then stated "On March 3,
1959, Logan Cummings was hired by both. . .'I Although he was
hired by both on the same day, he must have made his bond for one
district first, or done some act which indicated his assumption
of the duties of one office before the other. We quote 'from
Prultt v. Glen Rose Independent School District, supra, at page
1007:

              "The text, 34 Tex,Jur. 354, 8 19, summarizes
        the rule thus: 'Having elected to accept and
        qualify for the second office, ipso facto and as
        a matter of.law, he vacates the first office.
        Thlo 13 true, where both offices are placec of
        emolument regardless of whether they are ln-
        me,          and if they are 1ncompatibIe t=re
Honorable Jerry Dellana, page 4 (WW-1442)


    Is a vacation of the first office regardless
    of whether both a-e offices of,emolumentwithin
    the meaning of the'Constltutlon. In such clr-
    cumstances the constitutionalprovision that
    all officers shall continue to perform the duties
    of their offices until a 8uccessor has been
    qualified does not apply."' (Emphasisadded)
          The.questionas to which office has been vacated
depends on which office he assumed last. Since the Attorney
GeneralIs office does not determine questions of fact, we cannot
decide this question, but do hold that under the facts submitted
and the holding of the Prultt case, that there has been a vacation
by operation of law of theflce    first assumed, in which case
the officeholdervalidly holds the second office.
          Your question 1. (b.) presents a slightly different
sltua'tlon.There the problem concerns the same person's acting
as tax assessor-collectorand also.as business manager of t,he
same Independent school district. Heretofore such a question
has not been before this office.
         Texas Jurisprudencedefines an office as follows:
          "'Office'embraces the Ideas of tenure, dura-
    tion, emolument;and duties. .Among the criteria for
    determiningwhether an employment is a public office
    are the following: the delegation of a portion of
    .the sovereign functions of the gdvernment; the're-
    quirement of an official oath; that the powers en-
    trusted are conferred by law and not by contract;
    and the fixing of the duration or term of office.
    It 13 the duty pertaining to the office and~the,na-
    ture of thatduty, and not the extent of authority
    which makes the Incumbent an officer; and'one Is.
    none the less an officer because his authority Is
    confined to narrow limits." 34 Tex.Jur. 323;
          A considerationof the position of business manager of
an independent school district leads u3 to the conclusionthat
such posltlon Is not a "Civil Office of emolument" as that phrase
Is used In the Constitution. Article 2791 of Vernohls Civil
Statutes provides for the specific position of tax assessor and
collector,and we find no law or any other authority giving rise
to the pooltion of business manager although,the trustees may
create the position if they deem it necessary. In addition the
duties OP such an employee are fixed by.contract and not conferred


                                 ,
Honorable Jerry Dellana, page 5 (NW-1442)


by law. It 13 aloo significantthat such employee ordinarily
serves at the discretion of the trustees, and that therefore
no specific term of office Is involved.
       '. Since the gosltlon of business manager is not a "Civil
office of emolument,  it follows that one serv1n.gas tax assessor-
collector may also serve as business manager. Aside from the
constitutionalprohibition of holding two civil offices at the
same lme, we f.indno incompatlbilltyresulting when one person
perfoEma both functions within the same district.
          Many opinions from this office have heretofore held,
as with tax assessor-collectorsdiscussed above, that a super-
intendent of an lndetendentschool district holds a "clvll
office of emolument.   Opinions Nos. O-7323 (1946), V-1244 (1951).
It therefore follows that It Is unconstitutionalfor the same
person to be tax assessor-collectorand superintendentor "acting
superintendent"of an'independentschool district at the same
time.
          Opinlon'No.~WW-1412 (1962) properly.disposesof your
question No. ,2,which opinion held as follows:
          "The tax assessor and collector of an lndepend-
     dent school district is not a *civil officer1 wi,thln
     the contemplationof SectIon  14 of Artlcle~XVI of
     'theConstitutionor'Texa8 and would'not.haveto
     reside within the territorial confines of such
     school district."
This holding was based,on the case of Aldlne IndependentSchool
Dlstrictv. Standley; 154 Tax. 547, 28b'S.W.2d 576 n955) .

                       S U 13tiA R,Y
          The positions 0r tax Gisessor-coilectoror an
     'independentschool district or of 'a water.control
     and improvement district, the superintendentoracting
     superlntenden,tof an independent school district are
     all civil offices of emolument, and It is a violation
     of Section 40 of Article XVI of the .Constitutlonfor
     one person to hold two or more of suah offices.
          The pocltlon of business manager of an lndepend-
     ent cchool district is not a ~1.~11~office of emolument,
     and therefore a person holding such position may also
Honorable Jerry Deliana, page 6 (WW-1442)


    hold any civil office of emolument   In   addition thereto.
         The tax assessor-collectorof an independent
    school district is not an officer of such district,
    and need not reside within the boundaries of that
    district.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas


                                 Fred D. Ward
                                 Assistant
FDW:wb':mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Arthur Sandlin
John Reeves
Bill Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
