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                TBIEATTORNEY             GENERAL
                            OP%+EXAS




Honorable Wm. J. Benardino             Opinion No. C-541
County Attorney
Montgomery County                      Re: Authority for one person
Conroe, Texas                              stop
                                              hold at the same time
                                           the positions of Deputy
                                           Tax Collector and Truant
                                           Officer of a school dis-
                                           trict, and Constable,and
Dear Mr.       Benardino:                  related questions.
       Your request for an opinion on the above subject matter
asks the following questions:
            "1. If 'A' qualifies as Constable, can he,
       under the law, continue to hold the positions
       of Deputy Tax Collector and Truant Officer of
       the school district, drawing his salaries there-
       for, or are these positions incom atible as con-
       templatedby Article 16, Section &0, of our State
       Constitution?
            "2. If, in you.ropinion, these positions are
       incompatible,and ~.‘A’ cannot continue to draw
       salaries for these positions,has 'A',~asa matter
       of law, vacated the offices of Deputy Tax Collector
       and Truant Officer upon qualificationas Constable?
            "3. If, in your'opinion,the offices of Dep-
       uty Tax Collector and Truant Officer are vacated,
       would 'A' or his bondsmen be liable for any sala-
       ries received from the school d$strict as Deputy
       Tax Collector and Truant Officer after qualifying
       as Constable?"
       Section 40 of Article XVT of the Constitutionof Texas
provides In part:
            "No person shall hold or exercise, at the same
       time, more than one Civil Office of emolument,ex-
       cept. . .ll(Exceptionsnot applicable).



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Hon. Wm. J. Benardino,page 2 (C-541)


      In Attorney General's Opinion WW-1442 (1962), it is
stated:
           "As to your question 1 (a), numerous opin-
      ions from this office have held that the posi-
      tions of Tax Assessor and Collector of a county,
      independent school district, or of a conservation
      district are all civil offices of emolument. At-
      torne General Opinions Nos. o-697 (1939), O-2687
      (19407,and WW-1295 (1962). Pruitt v. Glen Rose
      IndependentSchool District,‘12b Tex. 43 64 S.V.2d
      1004 I19351. We hereby reaffirm these h&.dinns and
      also hoidthat a county water control and improve-
      ment district is a separate governmentalauthority
      and similar-toa conservationand reclamationdis-
      trict, and that therefore two separate offices of
      emolument are involved. It is thereforea violation
      of Section 40 of Article XVI for the same person to
      hold both offices in question.'
       We quote.fromPruitt v. Glen Rose IndependentSchool Dis-
trict, 126 Tex. 45, 8% S.W.2d 1004 (lyj>), at t14S .W .2d 1007:
           ,"Thetext, 34 TexLJur. 354, g 19, summarizes
      the rule thus: 'Having elected to accept and quali-
      fy for the second office, ipso facto and as a mat-
      ter of law, he vacates the first office. This is
      true, where both offices are places of emolument,
      regardless of whether they are incompatible,and if
      they axe indompatiblethere is a vacation of the
      first office regardless of whether both are offices
      of emolument within the meaning of the Constitution.
      In such circumstancesthe constitutionalprovision
      that all officers shall continue to perform the
      duties of their offices until a successorhas been
      qualified does not apply."'
      In Attorney General's Opinion O-697 (1949), it was held:
           "Under Section 40 of Article 1.6 of the Consti-
      tution, above quoted, two civil officers of emolu-
      ment cannot be united in'the per80np unless one
      of them is within the enumeratedexceptions;and
      a person cannot hold or exercise two such offices
      in either a de jure or de facto capacity. Oden
      vs. Sinton IndependentSchool District, 234 S.W.
      1090; Tex.Jur. Vol. 34, pa 347; State.vs. Gillette
      Estate, 10 S.W.2d 984.

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Hon. Wm. J. Benardino,page 3 (C- 541)


            I,
                 .   .   .


             "Deputy sheriffs, deputy constables,deputy
       county clerks, and departmentalchief clerks are
       public officers. Therefore, we are of the opin-
       ion that a deputy tax assessor,-collectoris an
       officer within the purview of the above mentioned
       constitutionalprovisions. State vs. Brooks, 42
       Tex. .62; Murray vs. State,,67 SW 26 274; Donges
       vs. Beall, 41 SW 26 531; Pfeffer vs. Mahuge, 260
       SW 1031; Tex.Jur., Vol. 34, p. 602.”
       In Attorney General's Opinion W-1316 (1962), it was held
that the office of constable constitutedb civil office of emolu-
ment yithin the meaning of Section 40 of Article XVX of the Con-
etltution of Texas.
      In view of the foregoing,your questions sre answered as
follows:
       1. If "A" qualifies a8 Constable,he cannot continue to
hold the position of Deputy Tax Collector and Truant Officer of
the independent school district.
       2.  If "A" qualifies for the'officeof Constable, he,
ipso facto, vacates hisoffice of Deputy Tax Collector and Truant
Officer of the independent school district.
       3. Any salary paid to “A” by the school district after
he has qualified for the office of Constable should be refunded
to the independent school district. As "A" vacated the offices
of Deputy Tax Collector and Truant Officer of the school district,
by qualifyingas Constable,his bondsmen would not be liable for
any salaries received by "A" from the school district, after
qualifyingas Constable. After vacating such offices he had no
duties to perform for the school district, as he was neither a de
jure nor de facto officer.
                             SUMMARY
           In view of the provieions of Section 40
       ofArticle XVI of the Constitutionof Texas,
      prohibiting the holding of two civil offices
      of emolument at the,same time by one person,
      one person cannot hold the office of Constable
      at the same time he holds the office of Deputy
      Tax Collector and Truant Officer of an indepen-
      dent school district.

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Hon. Wm. J. Benardino, page 4 (C- 541)


             Whenever a person holding the office of
        Deputy Tax Collector and Truant Officer of an
        independent school district qualifies for the
        office of Constable, such person vacates the
        first office. Pruitt v. Glen Rose Independent
        School District, 12b Tex. 43 v    . .
              , and he can no longer'drawcompensation
        as Deputy Tax Collector and Truant Officer of
        the independent school district. As "A" vacat-
        ed the offices of Deputy Tax Collector and
        Truant Officer of the school district, by quali-
        fying as Constable, his bondsmen would not be
        liable for any salaries.receivedby "A" from
        the school district, after qualifyingas Con-
        stable. After vacating such offices he had no
        duties to perform for the school district, as
        he was"neither.ade jure nor de facto officer.
                              Yours very truly,
                              WAGGONER CARR
                              Attorney General


                              BY
                               *ek ohn Reeves
                                    Assist&d
JR:ms

APPROVED:
OPINION COMKITTEE
W. V. Geppert, Chairman
J. C. Davis
Kerns Taylor
Phillip Crawford
Roger Tyler
APPROVED F'ORTBB ATTORRBY GENERAL
By: T. B. Wright




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