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                              AUWI-IN   ~.TEXAS

                             November l?, 1949

          Hon. Carroll F. Sulllvant      Opinion No. V-945.
          County Attorney
          Cooke County                   Re: The legality of the Coun-
          Qalnesvllle,Texas                  ty Attorney serving as a
                                             trustee of the munlclpal-
                                             ly controlledpublic
          Dear Sir:                          schools at Gainesville.
                    We refer to your letter of recent date request-
          ing an opinion of this department on the following ques-
          tion:
                      May the County Attorney aepve at the
                      same time as trustee of municlpallg
                      owned schools?
                    Dual office holding is expressly forbiddenby
          Section 40, Article XVI of the Texas Constitutionwhen
          both offices are civil offices of emolument. In Section
          33 of Article XVI the accounting officers of the State
          are forbidden to Issue or pay a warrant upon the Treas-
          urer for the payment of salary or compensationto a civ-
          il officer, who at the same time holds another office of
          honor under the United States or the State of Texas.
          Since neither the County Attorney or a trustee of a mu-
          nicipally owned school district Is an office to be paid
          out of the State Treasury, Section 33 of Article XVI is
          not violated by the facts submitted.
                    The constitutionalprohibitionagainst the
          holding of more than one office of emolument (Art. XVI,
          Sec. 40) is inapplicableto the question under consld-
          eration for the reason that since a trustee of a muni-
          cipally owned school district serves without compenaa-
          tion, his is not an office of emolument. Acts 1909,
          Rd., Special Laws, p. 507.
                    However, it is also a fundamentalrule of law
          that one person may not hold at one time two offices,
Hon. Carroll F. Sulllvant,page 2 (V-945)


Knuckles v. Board of Education of Bell County (KY.) 114
 . .   11, 514; Attorney General Opinion Eo.'O-3199.
          We have consideredthe statutes relative to the
respective duties Incumbent upon a County Attorney and a
trustee OS a munloipallgcontrolledschool district. We
can conceive of no sound basis upon which it may be said
that the oSSlc44 are incompatible. We have been unable
to find any statute providing that either office 14 ac-
oountable to, under the dominion oS, or subordinateto
the other, or which provides that either office has a
right to interfere vlth ths other in the performanceof
any offlclal duty. Nor have w4 been apprised of any roa-
son why the dutioe of a County Attorney vould be Lncon-
sistent or In conilictwith the tlutlee of a trustee of a
municipally controlledschool district.
          In the case of Bonner v. Bolster11   101,Tex.
!22: 138 S.W. 571 (lgll), the court hold In sgt aa Sol-
    :
           "The board of education of the city of
    Dallas vas created and its powers and duties
    prescribed by article 5 of the charter of
    the said city hereinbeforecopied. The board
    derives its existenceand all of the authorl-
    ty it po~s4a44s from the charter,which opsr-
    ates only within the llmita of the city. By
    the provisions of the chartor, the board had
    entire   control of the school fund and of the
    ~;~xw~~y; ln fact, of everythingpertaining
                The auditor OS ths city 1s required
    to pass'upon all accounts of the aaid board,
    and no act of ths board has any reference
    whatever to the county or Its ofilcere. The
    relation of the board oS education to the
    county i8 only incidental to,its bslng a part
    OS the srstsm of fro4 school4 of the etat4.
    We thereSore conalude that the members of the
    board of education am oSSlcers of the city
    of Dallas. and not OS the county OS Dal1
    6ortum v. Board OS OSSlcere, 109 lI Y 1;:'
    16 H. E. 328; Throop on Public OSSic4&3, d7.
    The members of th4 board of 4ducationb4ing
    of the city word not vlthln the tom     of ar-
    ticle 5, %24, of the Constitutionand it was
Hon. Carroll F. Sullivant, page 3 (V-945)


     within the power of the Legislatureto pro-
     vide for their removal otherwise than by the
     judge of a aim-ict court.’ (Eanphasis ours.)
          For further Informationsee Fowler v. Thomas,
275 S.W. 253 (Tex. Clv. App. 1925, error di6m.); Keyker
v. Watson, 291 S.W. 957 (Tex. Clv. App. 1927).
          It is our opinion, thsrefore, that the two of-
fices In question are not incompatible,and that a Coun-
ty Attorney may servo at the 4amo time as trust44 OS a
municlpallg controlled school district.
                      SUMMARY
         On4 person nay hold at the aam4 tire both
    the 0SSices of County Attorney and trusts4 of
    a municipally controlled school district; the
    said offices being not incompatibleand the of-
    fice of trustee not being one of emolum4nt.
    Art. XVI, Sec. 40 Constitutionof Texas.
                                   Youra   very   truly,
                                ATTORNEY fflPCEF&iL
                                                OF TEXAS




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                                FIRST ASSISTANT
                                ATTORlCW OENEIUL
