                                                                                        R-515


                                      E    i&lTOkEY                 GENERAL
                                                OF’ TEXAS




                        Bon, Lo A, Woodss State       Superintendent
                        Dspartanant of Education
         I




l
                        Awtfn,   Terra
                        Att\Mtiafi:       Ken, T, Y, Trimbls,
                                          Ffrst Assistant             Opinion   Non V-242
                                                                      Its:   Artthorfty of
                                                                             City AttornOf
                                                                             to some ad
                                                                             trustee of f*
                                                                             dependent school
    .,       .~
                                                                             district   not IUU.W
                                                                .            fclpally   oontrollebp
                        Dear Sir:
                                    We refer to your letter of reosnt date acknowl-
                       'edged by the Attorney General on may 26, 1947, wherein
                         you request an opinion from this office   on the follow-
                         ing questfonf
                                      May the City Attorney  serve at the same                 .'
                               time as trustee of an independent sahool dfs-
                               trfct,   wh%ah dfstrfot  is not au.nloipully con-
                               tr6llsPl
                                   Artiels      XVIp Seotlon        40, Constitution     of Texaas
                        raade fsr parts
                                    *Ro psraon shall hold or exerctleee at the
                               same time, more than one civil offfoe   of emo$a~
                  ,.           almtd * o*
                                     Dual office   holding is expressly   forbidden by
                         Sectfon 40, Atitfale    XVX, of the Texas Constitution    where
                         both offfoes    are ofvil offfoes   of emolument, Dual offPoe
                         holdi@    is forbidden to an extent at least by Section 33
                         of Article   XVI wherein the acaountfng officers      of the State
                         are forbid&I     to issue of pay a warrant upon the Treasur-
                         er for the payment of salary      or emlpensat fen to a cfvf 1
                       '~@ffPcer, who at the same time holds another offfee        of
                         &t&a&r,trust, or profit     under the United States or the
                         State of Texasa
.
            Hon. L, A, Wooda 0 Page 2


                        The oonstftutfonN      pmhfbftfon  against the
             holdfng of more than one offfee      of emolument (Art. XVI,
             Seq, 4C) fs inapplicable      to the questfon under consfd-
             eratfon for the-reason     that sfnoe a trustee of an fnde-
             pendent school dfstrfet     serves wfthornt oompensatfon, his
            ‘9s not en office   of emolument, State VP Martin, 51 SOW,
             2dp 815; Attorney   General Opinion O-3308,     And sines nei-
             ther a City Attorney    nor a trustee of an independent
             sahool dfstrfat   are offices    to be paid out of the State
             Treasury, Seotfon 33 of Article      XVI fs not violated  un;
             der the facts submlttedd
    .
                       Hosver,   ft is also a fundamental rule of law
            that one person may not hold at one time t%o offices,       the
            duties of which are incompatible,    and this princfple’ap-
            plb# whether or not the office     is named in the exoep-
            tfona contained fn Article    XPPp Section 40,  Blenoourt
            t. Parker,  29 Tex, 558; State v. BrPnkerhoff,    66 Tex. 45;
            T-8     t0 Abernathy County Line Independent School Dfs-
        3   trfot,  290 SOW0 152; Pnnett VP Olep Rose Independent
            Sehool Dfstrfot,   84 SoW1. 26 1004.

                      Thfe prfnofple  of law, fnoompatfbflfty  of offf-
            oeao fe expreeaed clearly  fn 22 R,C,L, 4P4$ par, 56; we
             uote fma Knwkles    v. Board of Education ,of Bell County
            7fyo) 114 sow, 2d 511, p* 514, ae foPlowsn
                          *On8 of the most important testa as to
                  whether offfo-es are fnoompatfble      is found Pn
                  the prfaefple     that the fneompatfbflfty   fs
                  reaognfeeff whenever one fa subordinate      to the
                  other 4n aome of its fmportant and pr4ncfpl.e
                  duties,     or fs aubjeat to 8upePrfsfan by the:
                  other, or where a contrariety     and antagonism’
                  would result in the attempt by one person to
                  diseharg8 the duties of both,       Under thfs
                  prfnofple     two offfoes are incompatible   where
                  the fnewmbeotof me has the power to remove
                  the frmmbent      of the others though the aon-
                  tl~anep      on which the power may be exercsfsed
                  ia . r c r o tolBd it also exists where the ino
                  ownbent 08 OIW offfrre haa the power of appofnt-
                  aunt as to the other office,      D 0 0 or to audit
                  the loao@satb of another, or to exercise      a super-
                  rlsfon    Over another.n
                        Wo heoe aonsfdersdthe statutea relative to the
            rmpeetfva         fntWnbent. upon a City Attorney and a
                         du%fer
            trwto8 o? an fndependent senhool dfatriet which district          I
.




    Hon. L. A, Woods - Page 3


    is not municipally     controlled   but is governed exclusively
    by the laws appertaining       to independent school districts..
    in general S snd we aan oonoeive of no sound basis upon
    which it may be said tlat the offices        are incompatible.
    We have been unsble to find any statute providing that
    either offfoe~ is accountable      to, under the dominion of s
    or subordinate to ths othar, or which provides that of-
    ther office   has a right to interfere      with the other in
    the performance of any official       duty* War have we been
    apprised of any reason wh the duties of a City Attorney
    would be inconsistent     or I n conflict   with the duties of
    a trustee of an independent school district        which is not
    municipally   controlled,
                In Opinion 0-3906-A, this Department advised
    that it is the function of the county or district        attor-
    ney to advise the school officials      of independent school. !
    district8   oonasrnfng the school laws and to handle their        ”
    litigations   in contested eleotioss,     and that therefore
    the offioes   of county attorney and trustee of an fndepen-
    dent school district    are incompatible.     But this reason-
    ing would not apply to a Cft y Attorney.                        !
              It is our opinion,  therefore, that the two off-
    faes in question are not incompatible s and that your sub-
    mitted auestion should be, and is, answered in ths afffr-
    matfve,   -



                 0~s person *jr   hold .at the same time both
        .~ t~he offfoes ‘of City Attorney   and trustee of an
           fndependent sohool dfstrict     whfah is not munfcf-
           pally controlled,,   the said offfoes  being not in-
           compatible d
                                              Very truly   yours
    APPBPVEDJuIa 10, 1947              AlTOFUUY GWWWRAL
                                                     OF TWXAS


    2i?LdiFa                         .,ur*
    ATThEY        GXRltEUU                     Chester ,E. Ollfaon
                                               Asrfstaat




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