        Honorable F. T- Bmham        Opinion No, c-43
        Criminal Dlstrfct Attorney
        Cameron county               Ne: Whether+a county CaraniaaloDer
        Brownsville,Texas                with an unexpired telB of
                                         more than one year autaemtl-
                                         eally reel(gsae
                                                       his otflco um
                                         becoming a candidate for
                                         trustee of an fndependent
                                         school dl&Plet, and related
        Dear se:                         quert1one.
             In xollropiasfm rJe@eet, you et&e that mrIr.TQW Tmmyo,
        Jr., was elected to the offfoe oi Oounty Cmnl88loner~ Pre-
        8lmt No. TWO, cawroa COWty, Zbx88, at the general elmtlon
        inNovember,1962,for a iour-tc#r%enr. Ilr.!lbamyo~e duly.
        qucrllfledand aaeumed the dutier of such offfce on January 1,
        1963. On oraboutthe Sthdey of l@reh, 1963, Nr. Tammy
        flled a8 a candidate ior the offfoe of tm8tee of the Brtnm8-
        vllle Consolidated IndWendent S&o01 Disttiot. Qn the basla '
        of these raateo you hve requested an opinion on the folloul~
        QWotlon8:
              (1) Are the ofYfoe8 of Bounty omlr~,ioner and trustee
        'OS a ootmolldatedi~        t 8@loo~ d%rtPfat ln~~tfble?
             (2)  Ii a tmunty omf,rfoner wit48an miretd      term in
        -888 Of m     mF    eQBWVEe8 OF flhf'aOtdOO8 b8Om  a Oandli-
        d8t.ofor the offfae of tm8tee of.6 oun8olfdated fndependent ;
        8ohool di8tciotp docrr8uOb a-           or oeind1da0yeormti-
        tute an autarsW.0 rrrigrtla   d #PO @f&O* & oouaty 00158- '
        8lamP   thoo   tulm
             (3) Isathe over&that maohaawuwwwt       or cmdl48oya8
        8et out in @e8tOon Ilo.'ho &oee oomtltute an autmtfc rep
        8i@l8tiORanbthO OPerti~Of Q V808tkO,daQIttle OOuQtf OOI-
        -8iotUti hold the &floe 'da $I&       fl hi@ 8uOOe8OOF ha8
        boa& appo1astodt
             h'tiOl0 m, 6OQtiola# Of th8 5U88 COWt%tUtiOn pro-
        rLck8 th8t 80 v    8h811 hold OF WlWOi8eo et the MW ti80,
        moPeth85 am oirlloffloe of moluwm%, exoeptthsbto?




.   .
  .



Bonorable   P ., TI, ceaham   page 2       O$inlon No, C-43


Ju8tioe of the peace, counts cowi88Ioner, and certain n8med
ofSIoee not rtex%el to thlr opinion. 'IhIsconatltutlonal
provl.8Ionwould not prevent the aa@e $erson from holding the
office8 of county o=Irsloner end tru8tee of an Independent
8ohool dfrtrfet, not only because the office of .countyarm-
rl8rIoner I8 emressly excepted but ale0 becaure the offfae
of truetee of an Xndependent school disttiet Itinoe an oftlae
of emolument, However, the earn8person may not hold tip
oiffoes whfoh am f.ncwtIbls, even though the holdfng of


JurIaprudenCe8&e                        teete for deteraafnfng
                       oratthe foll.~wIng
Incagwtibllfty:
      o * * * Offfoes are Incompetfblewhere thefr dutfea
      are or.-3 be Incorsrfstent QF coeflfct, but not    ’
      where their &tier are wholly unrelated, are In no
      manr6ePfnoon8lrtentand ere never In oonflfot, and
      where wIthOr offloer f8 06OOtSntmBleer UWW    the
      &3Wrdm OS, Qc rubordIeabt6  to, I%6 other, or.&8
      asafrIgI& QP powor-to I~terfwa wltb'ehe other i.ti
      the perfawan~e of any draty."
     We have been un8ble to ffnd any court decfelon eeklltq
the question of whether the two offices here Involved are In-




olty are IQ0   tible, Sor the FeQIOn# rtated %n the follow-
tng quotation
            T M   the opInloQ~
           "In OUF oplnlm the oSfIoe8 of school trustee
       aEd alderman am lnoompetlbleifor under OUP system
       there ax% in the ofty counoil.or board of aldermen
      ~verlow dfreotorl or 8upervIrorypower8 exertable
       In re8p8ot to rohool property looate& within the
       ofty or tom and in XWpeOt    to the dutfer ci? rohool
       trwte8     rfonmble wIthin it8 llaftr--e-g*,there
      mightwe E arlre a oonfllot of dlroretlon or duty
       in re8peot to health, qureranM.ne, san%taw, and
       fire preventfan re laMone. See artfole8 1015
       lo@, lO?l* 1.8. 1%.      Tf the a8ue ~epson 0ou1A be
       a #ah001 trrasteeand a member of the cffy cbunetl
Honorable F. T. Graham     page 3       Opinion No. C- 43


     or board of aldermen at the same time, school poli-
     cies, In many Important respects, would be subject
     to direction of the council or aldermen instead of
     to that of the trustee8."
In regard to the matters mentioned in the court’s opinion,
both the school board and the city council are invested with
discretion or duty. Unlike the city councfl, the commlssfon-
ers court has no correspondingsupervisorypowers over the
school property of an Independent school district, nor does
it have any authority over the policies adopted by the
trustees for the administrationof the school system.
     Several prior Attorney Oenera18s opln.l.ona
                                               have dealt with
this question. Attorney Qeneral's Opinion No. O-998 (1939)
held that the offices of county commissionerand county school
trustee are Incompatible,citing a number of statutes on which
this conclusion was based and referring to an opinion written
In 1929 which held that the offices of county commissionerand
truatee of a school district were Incompatible. Opinion No.
O-5145 (1943) held that the offices of county commissionerand
trustee of a rural high school district are incompatible,men-
tioning apeclflcallythe duty of the commissionerscourt to
canvass the returns of certain school dlstrldt elections as
creating an Incompatlbillty. We do not agree that the duty of
canvassing the returns of elections, which Is largely mlnia-
terlal In nature, creates an Incompatibilitybetween the
offices, but there may be certain other duties of the commls-
aioners court with respect to rural high school districts
which would do so, and we express no opinion as to whether the
result.reachedfn Opinion No. O-51&5 Is correct.
       Opinion No. V-63, .renderedin 1947, reviewed the former
opinions and held thet the offices of county commlsslonerand
truetee   of an independent school district are not incompatible.
We have reconsideredthis holding and have concluded that It Is
correcte
     In your brief you mention a possible conflict of interest
where the school board requests the commissioners court to
pave or Improve a,certain road whl.ch,if paved, would materl-
ally affect travel of school.buses,  We are impressed by thlr
argument, but we do not believe the supervisory authority of
the commissionerscourt over the county roads within the dls-
trlct creates such a conflict of Interest as to make the
offices Incompatible.Although the school board would have an
Interest In the rerrponueto Its requeet8 neither body fs In
Honoreble F. ‘is.
                Qmham        page 4         CIpiFaian
                                                   No, C-43


the position of oontrollfng the actions of the other, and
neither hae any authority In the management of the affair
entrusted to the other. Uhele the matter is not free Srom
doubt, we adhere to the holdInS in Qpfnfon No; v-63.
     Your eeccnd queetfonfnvolvtt  a constmetfon of the pro-
vision in Article XVI, Sectfon 65 of the Connstitut%on,
                                                      added
by amendment In 1958, which reads:
         *Provided,however@ that fp a~ of the offfoers
     named herein &all announoe their txindidacbc~~,  OF
     shall in fact bei%&? a catm&&t~    fn %ny General,
     Special or PHmary Blectlow, for asayoffice of ppo-
    Ifit or trust m&w    the lawe of thfr State or the
     Unftt4 States other than the offfctthen held, at
     any time tihenthe me    fred tena sf the off’ict    then
L
     held #hall exoaed one“;p1) year Ouoh announcement
     .orouch candidacy shall conetidute an automatfc re-
     al.g%tfon of the offlee then held, and the vacancy
     thereby cre%ted t&all be ff.11~4propeuantto law In
     the same IIVMXMP aa other vmmccfte .for such office
     are filledu*
WMJ officera named eraSection 65 are those district, c&&P
aad precinot ofricerr whose tezm were fnoreartdhi6 two
~tarw to row year6 by the constftutfaaael anIe?&ent adopted
in l*, anQ fncludt county coarlrrfomam.
     $tctim 65 of im%iclt   XVI p~~v%&tr that auttmatic rk-
licpstion shall wrult iroa beomfrag a omndbidate“in any
 memlp’8~eofaP or grWmy      eleotfon. fop any offloe of ppo-
f it or trust under the laws ot thlr hate oc the PJnnfttd
Honorable F. T, Graham      page   5      Opinion No. C-43


concluded that the 1958 amendment had two purposes: (1) to
reduce the duration o? appointments reaultlng from relinquirh-
ment of the office then held upon election to the second
office, and (2) to prevent the ofifcer from &gaging In a
political campaign for another offlce at any time except dur-
ing the last year of hfs term. Although candidacy for an
office which could be held efmultaneouelywfth the of?Ice
then held would not be contrary to the ffret purpose, it is
contrary to the second purpose. Ae already noted, a person
mey law?ully hold the offloe of county comfaaloner or
justice of the peace eImultaweou6lywith another offlce I? the
two offices art not incompatible. Certain o?ffaea whloh are
filled at the gtne~l eltotfon for state and countjrofflcers
are not fncomp%tlblewfth the offioee of county cumfasloaer
and JustIce of the peaot. Yet we think there can be no doubt
that oandldacy Par any other offlctwhich ie ?fll&.at the      I
general tltotion r0P state  and oounty orricers, at a tiae
whenthe untaplrtd   terr of the offfotthenheld txattde4   one
year, would oonatftuta an automatfo m9gnation, regardlose of
whether both oifl~tr could be held by the 8ame perron.
      The three typtrr 0r tleationa r0r stltctlon 0r public
offloers are gtneal or “rtgulap”    eleetfona, sptoial tltotlone
(both of which are elections in the true eenee thnt o?fIctrs
are elected thereat), and prfmarg tleotlons for nomination of
candlslatts  by polftfcal partfee. A general eltctlon la one
which recurs ptx%oUUally at rated lntervalr es fixed by law,
whtre8ea e~aLaltl~tionfao~t~t'rrires?~eae
exigency OF special wtd outside the usual routine, such a8 to
fill a vaoanoy fn o??fot. I.8Am.Jur.181, Slectlone, Sec. 5.
In thle Betwe an eltotion 18~ school tnartets regularly held
on a date ilxed by law lr a general tltotfon. The antutr to
your mtooaad  qutrtfom turne on Mmther tlkfrla the meanlragof
the tom   81) ursd in St&Porn 65 o? ArtiaI,t XVI, or whether lte
meanly lr rertrioted to the ~lenn%al~generaltltctfon f6r
state and county ottioers.
     In Oretnwood v. efty of B1 Paso, 186 S.U.2d 1015 (Ttx.
C1v.App.m       tmt    qutstlon fop aeairfon me whether the term
"gtntraltltotionna8 used iraa rtatutt rtqufrfpag that the ap-
plication or mn indtpematmt   candfgatt ior a city orffoe be
slgntd by voter8 numbering flvt per oent o? the entire vote
caet In the city *at the Jrst generaf tleceisn"meant the last
general muri~cipalelectlam or the la& general eleotlon for
state and county officera, In reaching the eonalueion that
the tom ae there wed had the latter      meanlaag,the court Bald:
         "The words 'general election' would, standing
     al&e, mean the state-wide election held In pur-
     fiuanct of general 1Sw every two yearas which elec-
     tion IS ?or the atleotlon of state, dfStrICt,
     couaty and preolnot Q??lcera. This la a popular
     meaningo? the term. It Is a fundmental rule of
     statutory oonetructlonthat unlesssome good mason
     appeSPa to the contFaPy, words uSed In the Statute
     would be eonatmedby the 6ourtaIn QcooPd%notwith
     thtlr p6pul.a~and ~nemlly mdtratood meanIn&"
The CQUPt fudher  obatrvtd, hwevero thatthe kw "&eneral
elt&lonn may rmetlma r&m      to the petiaddfealelect&ma
held by citle8 SOP the Se%SotfQBbof munlel~l s??lcs~8   (by.
txtennlonn,this observation WoraPdSlSo apply ts the petiodlcal
eleatlonaheld w'achool dlot~lfeta),  and held that In the oath
which the algmtraof the appllcs~tlono? en 3.ndtpendtnt  aandl-
datefor a oftyofficewire required to subaoribt     to,awmng
that they were qualISted v&era "at the bet general tlootloa,*
the ten, nmnt tha next gmmml olty tltotion.
     !fhtphr8ae 'the gemwl election" aamltr a dl??erent
connotetbm rpa the @maw     "any gene2ml electlon.N The
for6tr auggemts e+apeolflawneml electlen, an4 would ueumlly
be takta to mean the one moat agaotXly known-the Novambw
gtneml tltotlon ?or atates8M 8ount.y
                                   citfcerr-unless  ua& la
sontextmguIxtnga dfiierent  faat.trpretatlm.“Amy 6tWlW1
eleetlon"fa not a0 lllftadfn oonnotatlor3.
                                         T?ww#mut    the                    a
#bCtiQsL cQdtp tht @2?%8t,       "fKl 6111 tltttfOFl8,   ~EltXlBl,
                                                                   @p!J
or ppamar-y,* or aimalar     woks      la rP8qut8t~      used when   he
~rovlalom la     lnttmiMd   to apply to,evtly tm         0S election, by
wbatevel,
        authorityft ~7 be held,end ohjar                   Imcludta aloa-
tlona heldby e%tfor,#a&ml dletz%ote~ end 3 her polltlaal
aubM.vlrleor0r the Btatema welldr tleotlona for state and
coumtyQrrlatP80 Sees tar laam@e, Artfolsa l.W, 2.010 3.03,
3.04, 9.01,sad 9.U2,Vtmon~a  ~~stfon Co&.
    AB used In Ststlom 65 of A&lole l(vI we think tkm krm
"my gene-l, apealal OF pri85~rgelection8 was lmttmdtd a8 an
all-igclueive
           dtasrfptlon              lleotfon
                     o? everylcfnd.o?      at uhloh
               roflt op trust under the laws of this         Nate   or o?
               tat88 sn voted or&.

gtatR1 eltotlm ior rtMo and aoumty oSSfeer8, we think this
lnterprttatlanla &efinlte~ aanSlrme4 Ar4%oltXI',&atlom
11 oS   the   Comatlhtlom, oh%& wa8 rubrft
                                        T e4 by the same
   -



iionorableF'.T. G?%ham      page 7        Oplnfon No. C43


Legislatureand adopted at the same election as the 1958
amendment to Section 65 of Article XVI. The pertinent por-
tion of Article XI, Section 11 reads ae followa:
          "Sec. 11. A Home FiuleCity may provide by
       charter or charter amendment, and a city, town or
       village operating under the general lane may pro-
       vide by majority vote of the qualified voters vot-
       ing at an election called for that purpose, for a
       longer term of office than two (2) years for its
       officers, either elective or appolntlve, or both,
       but not to exceed four (4) years; provided, however,
       that tenure under Civil Service shall not be affect-
       ed hereby.
          "Provided,however, I? any of such o??loera,
       eleotlve or appolntlve. shall announce their candl-
       dacy, or shall In fact become a candidate, In any
       general, apeclal or.prlmary election, for any office
       of profit or trust under the lawa of this State or
       the united States other than the oiflce then held,
       at any time when the unexpired term of the office
       then herd shall exaeed one (1) year, such announce-
       ment or such candidacy shall aonatltute an automatic
       realgnatlon of the oflice then held, and the vacancy
       thereby created shall be illled purfMInt to law in
       the same manner as other vaoanolts ror auah ofiloe
       ara filled."                                           ,
We find In the second paragraph of this amendment a repetl-
tlon, In Identical langukge, of the elections and offices re-
ferred to In Section 65 of Article XVI, and'lt must be pre-
eumed that the lanfxuanewas ,Intendedto have like meanlnn In
both amendments. ~olilngaworthCounty v. Allred, 120 Tez.
473, 40 S,W.2d 13 m       Garrett v. Mercantile Nat. Bank at
Dtlllas,140 Tex, 394,
me       offices for                                    zE:o-
matic resignation under Article XI,-Section 11 are not limited
to offices regularly filled at the general election for etate
and county o??lcsra, for the section was manifestly dealgned
to make candidacy for another city office at a city election
constitutea reelgnatloa,as well as candidacy for other
o??lcsa at electiona held by other political entitles. This
necessarilymust be true, because the phraee "other than the
office then held" would otherwI,aebe meaningless, alnoe the
%?flct then held" could be filled only at a olty eleotlon.
I9eltheroan this aeotlon be oonatrued as referring otix to
. .   -



      Honorable F. T. maham        mm     8           apInion Ho. C- 43


      eleotlonafor ollq7osrioea, because no off loe “underthe
      UnitedStaterw10 filled at a city eleotfon. CorMruing the
      two aeotione twether, we lust oonolude that in each section
      the lanlyage uaa Intended to embrace all elictfona, fncludlng
      electlona.forschool truetebei Aooordfnglyo we are of the
      opinioathat candidacy 6r the count~~eoafseioner  ror eohool
      trustee constitutedan autoomtio reeignatlonof the:ofrfoeof
      oounty~comil~aloner.
           Your~thlrd question, m-whether the oounty oattmiasioner
      continue8 to hold the offfce'~unti1 hle auooeeaor has been
      a pointed 'wae anmered~ln Attorney Qeneml'8 Opinion No. W-
      853 (1962).That opinion held that under Article XVI0 Sea-
      tlon 17 of the Conatftution,providing    that all officer8 Wall
      continue to perform the duties .of their offices   until their
      auoceeaore&all be duly qualified, an ofiicbr.whoserealgra-
      tlon haa been effected by operation   of the provirlon  for auto-
 *    mtio.reslgnatlon contlnuee to aerwe ao a "de jum" offioer        '..
 '    until hla eueoea80r q~allfied for the orrice.


           The orrioeb  of count ooaairrrfoner and trustee of
           an Independent oohoo I dlmot     are not lnoompatlble,
           and may be held by the, Mae perron.
           Where a county oalo~ioher beoomerr a aandidate for
           the office of pw#tea~‘csf ;a111Qkdqendent rohool dis-
           trict at a time when the &e~@red term of his
           office  e%oeeda one year0 hlo oanbidaoy oomstitutes
           ann;rie&      rwigaation of the ofrioe of county
                           Tax; Coast. Art. XVI0 Sea. 65. He
           oontlauer to'eerve a# a “de fur@ abffoer until his
           ig;gaor lo a#po%nted     and bar ~u8liiied for the
                  . Tax.Con&.     Art.    S?X, Sea. 17.
                                         Tours *em    tnxlp,
                                         WA-      CAR6
                                         lrttorneyQeneral of Texea

                                         mav e -6
                                              Htwy K. Wall
                                              Aerletant Attorney   Qeneral
Honorable P,.T. Graham    k-we 9    opinion No. C- 43


APPROVED:
OPINION COMMITTEE
W. P. Geppert, Chairman

3. C. Davis, Jr.
Edward ii.Hoffett
J. Arthur Sandlln
W. 0. Shultz
APPROVED FOR BIE ATTORNEY OENBRAL
BY: Stanton Stone




                                                    .
