                                February22, 1988
Jrm MATTag
ATMRNEY -ERAI.

      Honorable Joe Warner Bell                Opinion     No. JR-862
      Trinity County Attorney
      P. 0. Box 979                            Re:   Whether a school    dis-
      Groveton, Texas   75845                  trict employee may be     com-
                                               pensated   for serving as   an
                                               election   clerk, and related
                                               questions    (RQ-1310)

      Dear   Mr.   Bell:

             You   request   advice   on the   following     questions:

                   (1) May an    Independent  School    District
               school   employee    receive  compensation     for
               work done as an election clerk on a day        off
               from school employment?

                   (2) May an employee of a County Road      and
               Bridge Department   also serve part-time   as   a
               city police officer?'   May he be   compensated
               for both offices?

            You advise    us   that    the    off-duty     school employee
      served as a clerk      at a constitutional       amendment  election
      and was compensated     by the county.       We note that a   school
      employee   is prohibited    from    serving as an election      clerk
      at a   contested   election     for   a school     district  trustee
      position.    $&g Elec. Code 532.054.

            Attorney   General Opinion JM-485            (1986) addressed    the
      matter of    the   state constitutional             prohibition   against
      dual office holding as follows:

                   The prohibition    in the Texas Constitution
               against dual    office     holding    prevents    one
               person from    holding     more than     one   'civil
               office of    emolument'     at   one   time.     Tex .
               Const. art. XVI, 540.       The courts have      held
               that a person holds        a 'civil    office'    for
               purposes  of that     provision    if he   exercises
               any sovereign    function of government      for the




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Honorable   Joe Warner    Bell   - Page   2   (JM-862)



        benefit    of   the    public     and   is    largely
        independent    of   others'    control.      RUiZ     t
        State, 540 S.W.2d 809, 811 (Tex. Civ. APP.~-
        Corpus Christi      1976,    no writ);     Til ev
        Roaerg,   405 S.W.2d 220, 224 (Tex. Civl          Aps:
        - Beaumont    1966, writ ref#d n.r.e.);        Aldine
        m    Dendent Sch 01 District v. Standlee , 280
        S.Wy2d 578, 583O(Tex.       1955).

      While you     do not     inform    us of   the duties     of    the
person who     is   the   subject of      your   first    inquiry     the
question posed reflects that the individual             is an emDlovee
of the school district.         It   has been held that a teacher
is an employee and       not an officer      within the meaning         of
section 40 of article XVI of the Texas Constitution.                 ti
v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus               Christi
1976, no    writ).      Nor    does   an   election     clerk   possess
independent    authority.      His duties and working hours as an
election   clerk are     determined    by the    presiding    judge     of
the   election.      Elec.     Code   5532.071,     32.072.     Because
neither a teacher nor an         election   clerk is an      "officer,"
the off-duty      school employee      does not     violate   the    dual
office    prohibition       by   serving      as    a   clerk     at     a
constitutional     amendment    election.

      You express    concern     that   Attorney   General    Opinions
WW-230   (1980) and   JW-118     (1983) cast     doubt on whether      a
school employee     may   be     compensated   for    serving   as   an
election   clerk.

      The factual    background   in your inquiry      is   distin-
guishable   from the circumstances     which led to the question
addressed   in those opinions.      In Attorney  General Opinions
JW-118 and MW-230 it was found that public school teachers
receiving   compensation    from state     funds might    serve    as
members of a city council       only if they receive no       salary
for service on the city council.        The prohibition     against
compensating   the school teachers      for service on the      city
council was based on that portion of article XVI,           section
40 of the Texas Constitution      which provides   as follows:

             State employees     or other individuals       who
         receive all     or part    of their     compensation
         either directly     or indirectly     from funds     of
         the State     of Texas    and who     are not    State
         officers,    shall not    be barred from      serving
         as members of the governing        bodies of school
         districts,    cities,    towns,    or   other    local
         governmental    districts;     provided,     however,
         that     such     State    employees      or     other




                             p. 4181
,

    Honorable   Joe   Warner   Bell    - Page   3   (~~-862)




            individuals   shall         receive  no   salary    for
            serving as members         of such governing   bodies.

          Since an    election    clerk    is not    a member     of    the
    governing   body of a school      district,   city, town or      other
    governmental    body,    a school    employee   is  not   prohibited
    from receiving      compensation     for duties    performed     as   a
    clerk at a constitutional       amendment   election.

          The common law      doctrine   of incompatibility       prevents
    one person from      holding two positions       if the duties      are
    inconsistent     or   in   conflict    or   if   one   position       is
    subordinate   to another.       Attorney   General Opinion      JW-519
    (1986).   We    are   unable    to   find   any   inconsistency       or
    conflict   in the duties of an election clerk at a constitu-
    tional amendment     election and those of an off-duty           school
    employee.    Nor do we find that one position         is subordinate
    to the other.     Inasmuch as      we find no conflict     in   duties
    here, we    need    not   determine    whether    the    doctrine     of
    incompatibility     applies to two     positions,    where at     least
    one is not an "office."

          you refer to the    person who is    the subject of    your
    second question    as  an "employee   of the   county road     and
    bridge department"    and "a road worker."    This   identifica-
    tion of his    type of employment    would negate any     concern
    that his position with     the county would    be defined as      a
    "civil office" so as to bring him within the constitution-
    al prohibition   of holding dual offices.

          In Attorney   General Opinion JW-485 it was found         that
    the common law doctrine      of incompatibility    does not     pro-
    hibit someone from serving       simultaneously   as a    constable
    and a jailer.     The prohibition   against one position       being
    subordinate   to the other was addressed      as follows:

                The common law doctrine of       incompatibil-
            ity prohibits   one person from occupying        two
            offices when one office may 'thereby          impose
            its policies  on the     other or subject it       to
            control    in  some     other   way.'      Attorney
            General Opinions JW-129, JW-133       (1984);    see
            Thorna5 v.
            S ho01 Di trict     290   S.W. 152 (Tex.     Comm*n
            Aip. 1927: holding approved) :State
                     v. Martin    51 S.W.Zd 815, 817       (Tex.
            Civ. App. - San Atonio       1932, no writ).

          We find     it unnecessary   to   delineate  the duties of   a
    county road       and bridge    employee and    a part-time  police




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HOnOrable   Joe Warner    Bell     - Page     4   (JM-882)




officer in   concluding    that  one of   these    positions   of
employment may not    impose its   policies   on   the other   or
subject it to control in some     other way.     Nor do we   find
that one position's   duties are inconsistent     or in conflict
with the other.

      An off-duty  independent    school district    employee    may
receive compensation    for services performed      as a clerk    at
a constitutional   amendment   election.      An employee    of  the
county road and bridge department       may serve as a part-time
police   officer    and   receive      compensation     from    both
positions.

                              SUMMARY

           An off-duty      independent   school     district
        employee    may    receive      compensation       for
        services    performed      as    a clerk       at
        constitutional       amendment      election.       2
        employee    of   the   county    road    and   bridge
        department   may serve     as a pa*-time       police
        officer and     receive compensation       for    both
        positions.




                                            JIM      MATTOX
                                            Attorney  General   of Texas

WARYEELLER
First Assistant    Attorney      General

IOU MCCREARY
Executive  Assistant     Attorney       General

JUDGE ZOLLIE STEAELEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Tom G. Davis
Assistant Attorney General




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