             TEXEA'P~OEWEY                 GENERAL
                           OF    TElxAs



                                       This opinion     overrules   Opinions
                                       O-4020 and O-4798 In so far aa
                                       there   Is conflict.
Hon. T.M. Trlmble, First Aaslatant
State Superintendent  of Public
    Inatructlon
Austln, Texaa
Dear Sir:                             glnlon     No. O-7323
                                         : Legality    of a superintendent
                                             of an Independent school dls-
                                             trlct  to serve at the same
                                            .tlme on the County Board of
                                             School Trusteea.   Article   XVI,
                                             Sec. 40, Conat. of Texas.
      Ye have your recent letter   asking this        question:   “18 it
legal for a superintendent   of an Independent        school dlatrlct   to
serve on the County Board of School Truateea          of hle county at the
same time?” We answer:     “No.”
       Our reasons are as followa:    Article XVI, Section 40, Texas
Constitution,   prohibits with certain exceptions  not material here
any person from holding, at the same time, more than one civil    office
of emolument.
        A county school trustee holds a civil office of emolument.   See
Articles   2676, 2677, 2678a, 2681, 2683 and 2687, Vernon’s Annotated
Civil Statutes.
        If the superintendent      of an Independent school district     also
holds a civil    office   of emolument, the reaaon for our answer Is
apparent.    The difficulty     lies 1n:drawlng the line between a “public
office”   and a “public employment. ” The concepta are different          but
the dividing   line 1s often obscured by looae language and by the
Inadequacy of language aa a medium of conveying clearout          Ideas.     The
confusion   1s painfully    evident In a paragraph In 34 Tex. Jur. p.
325, which attempta to dlatlngulah        the two ldeaa.
         Our Opinion No. O-4798 cited several caaea from other atates,
holding that school teachers and school principals         are not “public
officers.”     The opinion concluded that a district     superintendent
llkewlae    Is not an “officer”  within the constitutional     prohibition
above mentioned, but that the tax aaaeaaor-collector         of the district
Is such an “officer”     because our courts have ao held.      pruitt v.
              Independent School Dlatrlct   (Comm. App.) 84 S.W. (2d)
Ert . Iioae
                                                                                      -



 Hon. T.M. Trlmble,        Page 2     (O-7323)


       The Criminal Court of A peals In Oklahoma ‘expreaaly held (Kay
 v. Stevenson, 111 Pac. 26 824 7 that a superintendent   of an lndepen-
 dent school dlatrlct    la a mere employee hired under contract and la
 not an official   within the meaning of an act to punish those who com-
 mit extortion   under color ofofflclal  right.
        Our Article   2781, Vernon’s Annotated.Clvll  Statutes,  preservea
  the confusion.    It refera to such auperlntendents  aa “employees”
. and as “executive   officers.”   The statute reads aa follows:
        “The Board of Trustees of any city or town or any Independent
 school district    may employ a superintendent,       principal,   teacher,    or
 other executive    officers   In the schools therein for a term of not
 to exceed three yeara, provided that the Board of Trustees of an
 Independent school dlstrlct.whlch        had a acholastlc    population    of
 5,000 or more In the last preceding        scholastic   year may employ a
 superintendent,    principal,   teacher,   or other executive     officers    In
 the schools therein for a term not to exceed five yeara.               All twelve-
 month contracts    made by trustees    of Independent school districts
 with employees herein mentioned shall begin on July first              and end on
 June 30th’of    the year terminating     the contract.”
         We now conciude that, despite the foregoing   authorities,  the
 decisions   of our courts require the holding that a auperlntendent      of
 schools In an Independent school district    la holding an office   wlth-
 In the meaning of Section 40, Article   XVI, Constitution    of Texas,
 and, to the extent that our Opinion No. o-4798 holds otherwise,        such
 opinion la overruled.
       In Klmbrough v. Barnett, 55 S.W.   120, the Supreme Court of
 Texas had before It this certified  question:
 “(1)     Is the position of auperlntendent of the public schools of the
 city of Houston an office    for which a suit may be maintained In the
 district    court?”
        The Court answered as follows:     “We answer the first   question
 In the affirmative.   The position    of superintendent  of the free
 schools In the city of Houston Is an office,      and the lawful Incumbent
 of It would have a right of action to recover It or Its emoluments
 In case he waa unlawfully deprived of the benefit.”
         The court later reaffirmed   this holding In Bonner v. Belsterl-
 ing, 138 S.W. 571.     The Court of Civil Appeals at San Antonio (Loa
 Angeles Independent School Dlatrlct      v. Whitehead, 34 S.W. 2d 895) and
 the Court of Civil Appeals aa Austin (Temple Independent School Dls-
 trlct   v. Proctor,  97 S.W., 26 1047) both regard the position     of a
 superintendent    of an Independent school district    as an office   for
 which suit may be maintained.      The Austin Court aays this point 1s
 settled   law and cites the Klmbrough case.
              Since the courts hold that such superintendent     holds   an
  “office”,        It la a “~1~11 office of emolument,”
Hon. TiM. Trlmble,   page 3     (O-7323)


                                  Youra very truly
                                   A'J3!ORNgyQENERALOFTEiXAS

                                   By s/Donald Qay
                                        Donald Gay
                                        Assistant
W:BT:egw:wc


APPROVEDAUG 13, 1946
s/ Carlo8 Ashley
FIRST ASSISTANT
ATTORNEY GENESAL

This opinion   considered   and approved In limited   conference.
