   Honorable L. R. Thompson
   County Auditor
   Taylor County
   Abllene, Texas
   Dear Sir:            Opinion No.‘O-2701
                        Re: Would an old age assistance investiga-
                        tor who Is working for the State Department
              ,         of Public Welfare in this Stalebe prohibited
                        from holding office as a trustee of an in-
-                       dependent school district in this State under
                        the laws of th1a State?
                                               .
           Your request for opinion upon the'above stated ques-
  ~'tion has been received   and carefully considered bY this depart-
   ment.                          .
           Article 16, Section 40 of our State Constitution, reads
   in part as follows:
          "No person shall hold or exercise at the same
       time, more than one civil office of emolument...."
   Various exceptions, immaterial here, are provided for in this
   section.
          We quote from 34 Texas JurisprudenTe, page 323, as
   follows:
          "'Office' embraces the ideas of tenure, dura-
       tion, emolument and dut.ies. Among the criteria
       for determining whether an employment Is a public
       office are the following: the delegation of a por-
       tion of the sovereign functions of the government;
       the requirement of an official oath; that the powers
       entrusted are conferred by law and not by contract;
       and the fixing of the duration or term of office.
       It Is the duty pertaining to the office and the
       nature of that duty, and not the extent of authority
       which make the incumbent an officer; and one is
       none the less an officer because his authority is
       confined to narrow limits. Salary or compensation
       is not essential to constitute an employment an
       offlce; it is a mere Incident and forms no part of
       the office."
    Honorable L. R. Thompson, page 2         O-2701


           Since you did not specify in your letter.under what
    Act the independent school district was created, we shall as-
    sume that It was created under the general authority of Chap-
    ter 13, Title 49 of the Revised Civil Statutes of Texas, 1925,
    Article 2775 thereof provides In part as follows:
           "In each independent district that shall here-
        afterbe organized, the county judge of the
        county in which said Independent district is sit-
        uated shall order an election for seven trustees,
        who shall constitute the school board of such
I
        district, and all of whom shall serve without
        comoensatlon. (Underscoring ours)
           It is, therefore, apparent that a member of the Board
    of Trustees of an Independent school dlstrlct, created under
    the general law, does not hold an office of em lum nt within
    the meaning of Article 16, Section 40, of our itat: Constitu-
    tlon.
           We quote from 34 Texas Jurisprudence, page 349, refer-
    ring to Article 16, Sectlon 40, as follows:
           "The Constitution applies only to offices of
        emolument. 'Emolument' means a pecuniary profit,
        gain or advantage; hence the same person may hold
        two civil offices where no pay, compensation or
        pecuniary gain attaches to one of them, provided
        they are not Incompatible."
           We know of no reason why the duties of a member of the
    Board of Trustees of an Independent school district should be
    in any manner conflicting or incompatible with the duties of
    an old age pension investigator of the State Department of
    Public Welfare,of Texas.
           We have carefully examined the statutes of this State
    pertaining to the State Department of Public Welfare .ofTexas
    and we find no statute purporting to create an office known
    as an 'Old Age Pension Investigator.' We have been informed
    by the State Department of Public Welfare that an old age
    pension investigator is merely an employee of the Department
    who has no fixed tenure and can be discharged at will by the
    Department.
           We conclude therefore that an old age pension investi-
    gator is not an officer but merely holds a position of honor,
    trust or profit under the State of Texas.
           Therefore, Article 1.6, Section 40, of our State Constl-
    ,

        Honorable L. R. Thompson, page 3          o-2701


        tutlon would not apply to the above   situation, inasmuch as an
        old age pension investigator is not   an officer, nor a holder
        of a civil office of emolument, and   a trustee of an lndepend-
        ent school district does not hold a   civil office of emolument.

               Article 16, Section 33,   of our State Constitution,,
        reads In part, as follows:
               "The accounting officers of this State shall
            neither draw nor pay a warrant upon the Treasury
            In favor of any person, for salary or compensa-
,           tion as agent, officer or appointee, who holds
            at the same time any other office or position of
            honor, trust or profit; under this State or the
            United States, except as prescr~ibedin this Con-
            stitution."
               A trustee of an Independent school districtis a civil
        officer of the State. See Thomas,,et al vs. A,bernathyCounty
        Line Independent School District, et al, 278 SW 213 (1926).
               There can be no doubt that a trustee of an independent
        school district holds an office of honorsAndytrust within the
        meaning of Article 16, Section 33, of our State Constitution.
        See Opinion No. O-1422 of this department.
               Opinion No. O-1422 of this department holds that a per-
        son may legally serve on the board of directors of the Texas
        College of Arts and Industries, and at the same time serve as
        a member of the board of trustees of an Independent school dis-
        trict; but in doing so he forfeits all right to any compensation
        to which he might have been entitled as a director of'the col-
        lege, by reason of Article 1.6, Section 33, of the Texas Constl-
        tution.
               Opinion No. o-2528 of this department holds that a
        person may legally serve as an inspector of the Texas Liquor
        Control Board, and at the same time serve as a member of the
        Board of Trustees 'of an lndependent school district; but in
        doing so, he forfeits all right to any compensation to which
        he might have been entitled as an Inspector of the Texas Liquor
        Control Board, by reason of Article 16, Section 33, of the
        Texas Constitution.
               Limited Conference Opinion No. 0-2607 of this depart-
        ment holds that if a physician employed part time by one ln-
        stltution of the State accepts and holds a slmllar place or
        posltlon in another instftutlon at the same time, he cannot
        receive a salary or compensation for either position during
        the period of time that both are helcl..We enclose herewith a
                                                                   ..   .   .

.




    Honorable L. R. Thompson, page 4          O-2701


     copy of said opinion which contains a comprehensive dlscus-
    -sion of the matters involved therein.
           In the Instant question an old age pension Investigator
    clearly holds a position of profit under the State. Doubtless,
    It Is also a position of honor and trust. We also think he
    would be "an appointee" under the holding of our Opinion No.
    0-2607. And as shown above, a trustee of an Independent school
    district holds an offlce of honor and trust under this State.
           You are therefore respectfully advised that it is the
    opinion of this department that a person may legally serve as
    an old age pension lnvestlgator under the State Department of
    Public Welfare of Texas, and at the same time serve as a mem-
    ber of the board of trustees of an independent school district;
    but In doing so, he forfeits all right to any compensation for
    such period of time to which he might have been entitled as
    an old age pension Investigator     of the State Department of
    Public Welfare .of Texas,   by  reason of Article 16, Section 33,
    of our State Constitution.'
                                       Very truly yours
                                   ATTORNEY GENERAL OF TEEAS

                                       By s/‘Wm.J. Fanning
                                            Wm. J. Fanning
                                                 Assistant
    WJF:AW:wc

    APPROVEBSEP 13, 1940      '
    s/Gerald C. Mann
    ATTORNEY GENERALSOF TEXAS
    Approved Opinion Committee By s/BWB Chairman
