                     E               NEY      GENERAL
                               6F   TEiXAS




Honorable Joseph C. Ternus                  Opinion No. WW-1110
County Attorney
San Patrlclo  County                        Re:     Whether County School
Sinton, Texas                                       Trustees are elective
                                                    county and precinct
                                                    officers  as used in
                                                    Article  XVI, Section
Dear Mr. Ternus:                                    64 of the Constitution.
          We are in receipt    of your letter    In which you ask
for an interpretation      of Article   2676 of Vernon's civil
Statutes,   as amended by Acts of the 55th Legislature,
Regular Session, 1957.       In your letter you stated that
it was your opinion that that portion of Article         2676
which relates     to the terms of office    of a county school
trustee,   providing for terms of office       of two years, is
unconstitutional,     being In conflict    with Section 64 of
Article   XVI of the Texas Constitution.
           Section 64 of Article       XVI of the Texas Constitution
provides    as follows:
                   "The office  of Inspector of Hides and
           Animals, the elective    district,  county and
           precinct   offices  which have heretofore   had
           terms   of two years, shall hereafter    have
           terms   of four years; and the holders of such
           offices   shall serve until their successors
           are qualified."
           Article       2676 of Vernon's   Civil    Statutes   states   as
follows:
                  "Section 1. The general management and
           control of the public free schools and high
           schools in each county, unless otherwise pro-
           vided by law shall be vested In five (5) county
           school trustees elected from the county, one (1)
Honorable   Joseph C. Ternus,   page 2   (WW-1110)


        of whom shall be elected from the county
        at large by the qualified        voters of the
        county and one (1) from each Commissioner’s
        Precinct bv the auallfied        voters of each
        Commlaslon&~s Precinct,         who shall hold~of-
        fice for a term of two (2) years.          The time
        for such election      shall be the first    Saturday
        in April of each year; the order for the election
        of county school trustees        to be made by the
        county judge at least thirty         (30) days prior to
        the date of said election,         and which order shall
        designate as voting places within each common
        or independent school district         the same voting
        place or places at which votes are cast for the
        District    Trustees of said common and Independent
        school districts,      respectively.     The election
        officers    appointed to hold the election        for Dls-
        trlct    Trustees in each of said school districts,
        respectively,     shall hold this election      for county
        school trustees.
                “Sec. 2.   It shall be no valid objection
        that the voters of a Commissioner’s Precinct are
        required by the operation of this Act to cast
        their ballots    at a polling place outside the
        Commissloner Is Precinct of their residence.
                “Sec. 3.   Each year there shall be elected
        alternately   two (2) county school trusteee and
        three (3) county school trustees         In each county.
        All vacancies    shall be filled     by the remaining
        trustees.    All elections     heretofore    held in ac-
        cordance with the foregoing       provisions     of this
        Act are hereby In all things validated           and all
        truateea so elected      shall continue to hold office
        until the expiration      of the term for which they
        were originally    elected. ” (Emphasis added)
         There can be no question that a county school trustee
Is holding a public office.    In Volume 34, Texas Jurls-
prudence at page 322, It Is said:
                  “Many judicial definitions of a ‘public
        office’     are to be found In the reported case8
I       .




            Honorable   Joseph C. Ternus,   page 3   (WW-1110)
    .

                     but they are substantially    of the same Import.
                     It is said to be a right to exercise      a public
                     function or employment and take the fees and
                     emoluments belonging to It; ‘a public station
                     or employment conferred by the appointment of
                     government; ( and ‘the right,   authority and duty
                     created and conferred by law, by which, for a
                     given period,  either fixed by law, or enduring
                     at the pleasure of the creating power, an lndivi-
                     dual Is invested with some portion of the sover-
                     eign functions  of the government, to be exercised
                     by him for the benefit of the public. I The lndi-
                     vidual so Invested is a public officer.       He is a
                     person who exercises   some functions    of the govern-
                     ment - one who is commlasloned or authorized to
                     perform any public duty. ”
            Also see Klmbrou
                         Knox?. v. Burnett, 93 Tex. 301  55 S.W. 120, 122
            (1900), and          Johnson, 141 S.W.2d 696 (Clv.App. 1940,
            error ref. )
                       Article  2683, Vernon’s Civil Statutes,   and 37 Tex. Jur.
            930 refer to such trustee as being a coul;fty school trustee.
            It follows that holding a “public office        In this capacity
            classifies     such person as a county officer.
                       At the Qeneral Election     In November., 1954, the voters
            adopted Section 64 of Article        XVI as part of the Texas Con-
            stitution,    which, in effect,    changed the terms of certain
            offices    In Texas from two to four years.      These offices   in-
            cluded the Inspector of Hides and Animals, the elective          dis-
            trict,   county and precinct    officers   which theretofore   had
            terms of two years.
                     Prior to the amendment of Article      2676 by the Legis-
            lature In 1957, said Article    provided that county school
            trustees were to hold this office      for a term of two years
            and that elections  were to be held each year, and that they
            shall be elected alternately,     two county trustees and three
            county trustees.   The  Legislature    In 1957 carried over into
            the amended statute this same term of office.        This, In our
            opinion, was unconstitutional     as it violated   Section 64 of
            Article  XVI of the Texas Constitution.
                    The Legislature,   In amending Article  2676, Vernon’
                                                                        s
            Civil Statutes (Acts 55th Legislature,    1957, ch. 473, p.
            1383) provided the following   savings clause:
                                                                             .   ,




Honorable Joseph C. Ternus,       page   4   (Ww-1110)


                 "If any provisiona     of this Act or the ap-
         pllcatlon   the'eof   to-any person or circumstances
         is held lnvalld,     such lnvalldlty   shall not affect
         other provisions     or applications   of the Act which
         can be given effect      without the Invalid provision
         or application,     and to this end the provisions     of
         this Act are declared to be severable."
          The Supreme Court of Texas held in Jordan v. Crud&n&-
ton,   149 Tex. 237, 231 S.W.2d 641 (1950), at page b46:
                  "As a result of striking      from the Act the
          three provisions    above discussed,      must the Act as
          a whole be condemned? We have concluded that
          that result does,not follow.         The Act provides
          that 'If any Section,      clause or part of this Act
           shall be held invalid,     it Is hereby declared to
          be the Intention of the Legislature         that the re-
          mainder thereof not held invalid shall remain in
          effect,   and the validity     of the remainder of this
          Act shall not be affected       therebyaV     Section 15.
           Since the above provisions      of the Act violate       manda-
         'tory and exclusive    provisions     of the Constitution,
           It is our duty to carry out the express Intent of
          the Legislature    by substituting      the constitutional
          provisions    for the provisions     of the Act which
           they condemn, with the result that jury trials            In
          the court in question shall be had before juries
           of twelve men. Norman v. Giles, Tex.Sup.,            219
           S.W.2d 678; Greene v. Robison, 117 Tex. 516, 8 S.W.
           2d 655. With those constitutional         provisions     read
           Into the Act it is our conclusion        that It is a
           valid exercise   of the legislative      power; that is to
           say that none of the objections        urged by the respond-
           ent is valid."
          Because of the above mentioned savings clause, together
with the holding of the Supreme Court of Texas in the last
cited case, It Is our opinion that only that portion of
Article   2676, Vernon's Civil Statutes,   which pro;Cl;;&l;or
two year ,terms of office  la unconstitutional.
necessarily   follow that these elections   would be held every
two years rather than every year, and the terms of office
are four years rather than two.
I       .




             Honorable Joseph C. Ternus,   page 5   @W-1110)


                                       SUMMARY

                           That portion of Article    2676, Vernon's
                           Civil Statutes,    as amended, which pro-
                           vides that the term of office    of a
                           County School Trustee Is for two years,
                           la unconstitutional    as being in vlola-
                           tion of Section 64 of Article    XVI of
                           the Texas Constitution.

                                              Yours very truly,
                                              WILL WILSON
                                              Attorney General of Texas



                                                 Leon F. Pesek
             LFP:am:zt                           Assistant

             APPROVED:
             OPINION COMMITTEE
             W. V. Geppert, Chairman
    *   *.
             Virgil Pulllam
             L. P. Lollar
             Maston Courtney,
             Dudley McCalla
             RHVIHWHDFOR THE AT'IDRNHY
                                     GENERAL
             BY:  Morgan Nesbitt
