                    THEATTORNEYGENERAL
                                  OF     TEXAS




        Honorable J. W. Edgar               Opinion No, WW-1364
        Commissioner Of Education
        Texas Education Agency              Re:   Whether Section 33 of Article
        Austin, Texas                             XVI or any other provision      of
    i                                             the Texas Constitution     or
                                                  statutes   prohibits   a Univer-
                                                  sity Professor    or Lecturer
                                                  from receiving    their pay from
                                                  the University while holding
i                                                 the position   of a trustee of
                                                  an independent school district,
        Dear Mr. Edgar :                          and other questions.
I
                    You have requested    an opinion   from this   office    upon the
        following   questions :
                      *IaD Does Section 33, Article    XVI or any other
              provision    of the Texas Constitution     or statutes pro-
              hibit such a Professor or Lecturer from receiving
              their pay from The University       of Texas, while hold-
              ing an office     or position as a member of a Board of
              Trustees of an independent school district?          That is
              to say, the exception as to reserve and retired         of-
              ficers,    does it have application    here?
                    “b ., Should the wfves continue to serve9 fs
              their term for the unexpired term for which their
              husbands were elected    or only until the next regu-
              lar trustee election?f’
                   The facts surrounding the questions posed reveal that a              ~,
        full-time  Professor at the University of Texas and a Lecturer in
        Business Law at the University   of Texas were both elected to serve            ‘:
        as members of the Board of Trustees of an independent school dis-
        trict D The question then arose as to whether, pursuant to Article
        XVI, Section 33 of the Constitution    of Texas, the pay of the Pro-            ~,
        fessor and Lecturer at the University of Texas would be forfeited
        upon their servfng as trustees of the Independent school district.
        This resulted in the Professor and the Lecturer resigning from and
        refusing to qualify for the office    to which they had been elected.           ~‘~
        The Board of Trustees thereupon appointed the wffe of the Profes-
        sor and the wife of the Lecturer to ffll    the vacancies on the
        Board of Trustees of the independent school district     created by
                                                                 .      .




Honorable    J. W. Edgar, page 2       (WW-1364)


the resignation  and/or failure   t,o qualify of the Professor and
the Lecturer Bo The Professor   is an officerof  ‘theRetired  Reserve
of the United States Navy and the Lecturer is a member of the
United States Army Reserve.
             Section   33 of Article   XVI of the Constitution       of Texas
provides    that:
           “The Accounting Officers     of this State shall
     neither draw nor pay a warrant upon the Treasury
     in favor of any person, for salary or compensation
     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 prescribed      in this Constitution.
     Provided, that this restriction      as to the drawing
     and paying of warrants upon, the Treasury shall not
     apply to officers    of,the National Guard of Texas,
     the National Guard Reserve, the Officers       Reserve
     Corps of the United States      nor to enlisted men of
     the National Guard, the’ Nakonal Guard Reserve          the
     Organized Reserve of the United States, nor to’re-
     tired officers    of the United States Army, Navy, and
     Marine Corps, and retired warrant officers       and re-
     tired enlisted    men of the United States Army, Navy;
     and Marine Corps 0t8
             In the case of                      140 Texo 271 167
S.W.2d 147 ‘(1943) 9 the Su                     s had before it for
consideration    the provisions  of Section 33 of Article  XVI of the
Constitution    of Texas as well as certain other provisions   of the
Constitution    and in its opinion the Court held that:
            “We think the people, by the adoptfon’of        the
     amendments intended to avoid the inhibitions           con-
     tained in the then existing       Constitution   w%th re-
     spect to dual office     holding.     This conclusion   is
     fnescapable,    in our Judgment, when we consider the
     reasons for submftting Sections 33 and k0 to the
     people for their approval,        In selecting   the classes
     to be favored by the amendments, the National Guard,
     the National Guard Reserve, and the Officers          Reserve
     Corps’of the United States        among others, were in-
     cluded.    The inclusion   of ?hese classes encouraged
     the citizens    of this State to render a patr%otfc
     service to the State and the Nation by qualifying
     themselves for military      service,   0 ., Thus it ap-
     pears that,‘by    the adoption of these amendments,
     the people consfdered it to be in the interest          of
Honorable   J. W. Edgar,   page 3   (WC1364)


      the public to favor the classes named, by allowing
      them at the same time to hold civil     offices under
      the State.  The people no doubt considered,     when
      they adopted these amendments that the publfc”s
      welfare would be better served by allowing these
      classes to serve the State and Nation in the mili-
      tary units named, while at the same time rendering
      service to the State as civil  officers.w
           It is apparent that the intent of the last sentence
of Section 33 of Article    XVI of the Constitution   of Texas was
merely to allow individuals    who are members of the military
units named in Section 33 of Article     XVI to also be able to
act as an agent, officer    or appointee of the State without for-
fY;Yking the corn ensation that this office   or position may pro-
        We are o P the opinion, however that mere membership in
one if the military   units designated in Section 33 of Article
XVI would not serve as a complete removal of all the restric-
tions imposed by Section 33 of Article     XVI.
           While Section 33 of Article   XVI would allow an indi-
vidual to serve as a member of one of the designated military
units and also draw a salary or compensation from the State,
this provision   of the Constitution  of Texas would not allow an
individual   to serve as a member of one of the designated mlli-
tary units and also draw a salary or compensation from the State,
and at tha same time hold another office    or position     of honor,
trust or profit under the State or the United States         other than
being a member of one of the desfgnatad military      ties.
            In tine instant case there would be no conflict      with
Section 33 of Article      XVI for the Professor   or Lecturer to re-
ceive pay from the State for their services        rendered at the
kfversity    of Texas and at the same time be a member of one of
the military   units designated in Section 33 of Article       XVI.
However, membership in one of the deslbgnated military        units
would not serve as a basis for allowing a Professor         or Lecturer
who is rece%ving compensation from the State for services          ren-
dered at the University      of Texas to at the same time hold an-
other position    or office   of honor and trust other than as a
member of one of the designated military       units.
           The last sentence of Section 33 of Article     XVI does
not exempt certain fndfviduals    from the provisions   of Section
33 of Article  XVI; %t merely provides that those individuals
serving in a position   of honor, trust or profit as a member of
the designated military   units will be allowed to serve in such
capacity without the forfeiture     of compensation from the State
if he happens to be an agent, officer,     or appointee of the
State.
Honorable     J, W. Edgar,    page 4     (WW-1364)


             As the Professor and Lecturer in the instant case are
 presently   receiving a salary or compensation from the State,
 the question is raised as to whether a member of the ‘Boal’d of
 Trustees of an independent school district    is holding an office
nor position   of h onor or trust within the meaning of Section 33
 of Article   XVI.
               In Attorney   General’s   Opinion No. O-2701 (1940)     this
office     held that:
                “A trustee of an inde endent school dlstrlet     is
         a civil   officer of the Sta t e. See Thomas et al.     vs.
         Abernathy County Line Independent School &strict,
         et al, 278 SW 213 (1926).
               “There can be no doubt that     a ‘trustee of an in-
         dependent school district   holds    an office   of honor
         and trust within the meaning of      Article   16, Section
         33, of our State Constitution.       See Opinion No. O-
         1422 of this department.”
           Consequently, if a Professor    or Lecturer at the Unlver-
sity of Texas serves as a member ofthe Board of Trustees of an
independent school district,    it would result,  in effect,   in a for-
feiture  of any compensation payable to the Professor or Lecturer
from the State of Texas as Section 33 of Article      XVI prohibits   the
drawing or paying of warrants from the State Treasury in favor of
any person for salary or compensation as an agent, officer       or ap-
pointee of the State, when such person at the same time holds an-
other position  or office   of honor or trust.
           The next question raised in your letter   deals with
whether the individuals,   who have been appointed by the Board of
Trustees to fill  the vacancies left by the resignation    of the two
newly elected members of the Board of Trustees, will serve only
until the next regular election.
             We are uncertain as to which statutory      enactment gov-
 erning the activities      of independent school districts    that this
 particular    district   is operating under but in such statutory
 provisions    as Articles   277ka 2775~ 211776-l 2777d-2       2777f
 2777, 2777a 2777b, 2777d aid 2783: Vernon!s Civil Statute;
 the Legislaiure      has specihied  that a& vacancies filled     by th:
 Board of Trustees shall be for the unexpired term.         However, Ar-
 ticle   27’&b, Vernonus Civil Statutes,     pertaining  to districts    of
‘lOOzOO scholastics       or more and wherein there is situated a city
 having a population of 575 000 or more inhabitants         prov%des
 that vacancies shall be ffiled       by an appointee until the next
 regular election.
Honorable       J. W, Edgar,   page 5   mw-1364)


            Consequently, we are of the opinion that unless the
independent school district.   in the instant case is operating
pursuant to Article    2774b, the’ individuals appointed by the
Board of ‘JYustees to fill   the vacancies upon the Board will
serve for ‘the unexpired term of the members whose vacancy is
being filled,
                In your letter you further requested   an opinion   from
this   office     upon the following  questions8
             qqao Does the Board of Trustees of an inde-
       pendent school distriot    have authority legally  to
       grant or execute a long-term (50 years) lease to
       a fire prevention district    for the erection and
       use of a fire hall on its school property?
              ‘lb,  If the answer is in the affirmative,
       must the School Board first     make a finding that
       such action will not endanger the health       safety
       or welfare of its scholastics      and that &he site
       or area leased therefor    is no 4 needed for school
       distric%    purposes; in short, that the ground is
       surplus property?”
            The title   to property of an Independent school district
is by law vested in the Board of Trustees of such district,        and
the management and control of such property is given to the Board
of Trustees of such d9,strict,      Bustees   of Indeuendent Sch 01 Dis-
                                                              12; Tex,
                                                             ership,
management and control of such property,       the Board of Trustees
sta;nds~ in the position   of a trustee,    &yuQ    Citv of Dallas, 120
Tex. 351, 40 S.W.2d 20 (1931).
           In connec%ion with the Board of Trustees’ administration
of such properties,     our courts have recognized   that the leasing of
school property fcr non-school     purposes may be      harmony with the
                                                       in


purposes of the trust and may be consistent      with the faithful   per-
formance of the trust provi.ded the lease is made under conditions
which preven%‘i~.ts ‘interfering  with the conduct of the school0
            In the case of
hardt, 159 S,W, 1033 (Ci,v
property was leased to a n
purpose of allowi,ng the club to use such property as a site for
baseball games D In retrasn for %he privilege  of using the property
the club erected a fence enclosing  the entire school grounds, and
such fence was to become the proper%y of the school district,     In
holding that the Board of Trustees was au%horized to enter into
this lease,   tn,e Cow% held that:
                                                                .   .




Honorable    J. W. Edgar,    page 6   (WW-1364)


            “The contract under consideration      ermits the
     use of the school grounds only during t ii e period of
     time”intervening    between the close of the school in
     the spring and the beginning of the term in the fol-
     lowlng fall,    and will result in quite a financial
     advantage to the school district.’      It may be true
     that the use to which the grounds will be put under
     the contract is not actually necessary for the pro-
     motion of the school, yet, as it will not impede or
     interfere   with its progress,    or tend to injure the
     school property,    and will be used at a time when the
     grounds are not needed and will not be used by the
     school,   such use is not so inconsistent     with the
     purposes to which the property has been dedicated or
     set apart as renders the contract      permitting it il-
     legal or unauthorized.     + . e I1
See also    Attorney   General’s   Opinion No, O-5354 (1943).
              As the Board of Trustees in the instant case is aware
of the advantages to be gained by having fire protection         and
first    aid facilities    located In close proximity to the school
facilities      of the district,   and in ;i.;w 0: ;he language of the
Court in Rovse Indecendent School D            rlc    ReQ&.&& vi%!a?tk
we are of the opinion that the Board of Trustees could lease
certain property of the independent school district         to a fire
protection      district,  for erection  thereon of certain fire pro-
tection     facilities,   so long as such action does not impede or
interfere     with the operation of the school,
            As to the question of whether the Board of Trustees
must first make a finding that such action will not endanger
the health,   safety or welfare of the students and that the area
leased is not needed for school district      purposes, we are of
the opinion that these are matters which the Board of Trustees
must necessarily    consider in arriving at a decision    as to whether
or not the lease will be made. It would seem to be fundamental
that the Board of Trustees would ‘not consider executing a lease
until such time as these considerations      had been favorably met.
Whether these considerations     have been favorably met would depend
upon the facts in each particular      case and not necessarily  upon a
statement to this effect     in the minutes of a meeting of the Board
of Trustees 0
Honorable   J. W0 Edgar,   page 7   (W!&13&)




             Section 33 of Article   XVI of the Constitution
      of Texas would prohibit     a Professor  or Lecturer at
      the University    of Texas from receiving   compensation
      from the State for such services      if at the same time
      such Professor or Lecturer is holding the office       or
      position    as a member of the Board of Trustees of an
      independent school district.
             Individuals appointed by the Board of Trustees
      of an independent school district    to fill vacancies
      upon the Board of Trustees serve for the remainder
      of the unexpired term of the vacancy which is being
      filled   unless such independent school district   oper-
      ates pursuant to the provisions   of Article   277&b, in
      which event the appointee serves only until the next
      regular election0
             The Board of Trustees of the independent school
      district   in the instant case and under the facts
      stated would have the authority   to lease certain
      property to a fire prevention district    so long as
      such action does not impede or interfere    with the
      operation of the school,
                                    Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas




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