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         Mr. V. C. Marshall,   Administrator
         State Soil Conserva tlon Board
         6th Floor Professional Bullcling
         Temple, Texas
         Dear Sir:
                                                Opinion No. i-3395
                                                Re: Right of State or oounty
                                                      officer    peld on salary basis
                                                      to serve as supervisor        in a
                                                      Soil oonservatlon     district
                                                      and receive    pey for such
                                                      srrvloen.
                                                        1
                      Your letter   of April 8, 1941, ‘requests       the opinion
         of this     department   upon the following     questionr
                   Would an off’ioer of the State or of a oounty, who
         is drawing a salary from the State dr fpbm’the county on a
         monthly baals,  be eligible   to Z%OelVe p&y iihder the provi-
         slona of the State So11 Conservatldn     L&w fdr services ren-
         dered es a supervisor    In e soil oonservatlon  dlatrlct?
                  Artlole XVI Seotlon 40, of th& State              Constitution,
         es amended November 6, 1932, read@ es follower
                      “NO person   #hall   hold or exerolse,     at the
             seme time, mars than on@ Civil   Offlae of emolu-
             ment, rxorpt that of Jurrtloe  of Peaoe, County
             Commisrloner, Notary Pub110 and Postmaster,    Of-
             fioer of the National Guard, the Netlonal   @m?d
             Reserve,     and the Offloere       Relervr Corps of the
             United States and enlisted           men of’ the Natlonal
             clusrd, the National Ctuard Reserve,           and the Organ-
             lred Reserves of thr United State8;              and retired
             ofilorrs     of the United States Army, Navy, and
             Marlns oorp6, and ratlred warrant             offioers,    and
             retired    enlisted     men of the United States        Army,
             Navy, and Marlne Corps, unless otherwise Upeoislly
             provided herein.          Provided,    that nothing In this
             Constitution       ahell be oonetrued       to prohibit    an
             offloer    or enlisted       man of the Netlonsl      Ouard,
             and the National        G)uerd Reserve,     or an offloer
             In the Offloers        Reserve   Corps    of the United
                                                                               -   .




Mr. V. C. Marshall,      Administrator,     page 2,    (O-3395)


     Statea,   or an enlisted    man In the Organiaed Reser-
     ves of the United States;      or retired    officers
     of the United States     Army, Navy, and Marine
     Corps, and retired     warrant offloers,     and re-
     tired enllsted   men   of the United States      Army,
     Navy, and Msrine Corps, from holding in con-
     juntlon with such office any otherofflce            or
     posltlon of honor, trust      or profit,    under this
     State or the United States,       or from voting at
     any Election;   General,    Special   or Primary,     in
     this State when otherwise      qualified.”
              Under this Article      of the Constitution,        any of
the offloes       named In the exceptions      mey be held In conjunc-
tion with any other offloe,          whether auah other office         Is
named in the exceptions          or not.    Qaal v:Townsend,        77 Tex.
464, 14 S. W. 365.         If neither    of the two offloea        of emolu-
ment are within the exoeptlons           expressed     In Article    XVI,
Se&Ion 40, the two offloea            may not be held almultaneously
yg one    person.      Odem v. Slnton Independent        Sohool District
   om. App.), 234 5. W. 1090; Pl?uitt v; Qlen‘Roae Inde endent
Sohool Dlatrlot        No. 1 126 Tax; 45 84 S. W (26) lOO!
Torno v. Hoohatetler         fClv. APQ,) ii21 9. w.‘623; East&d
County v. Haael, (Civ. App.), 2& S.~W. 518. Where the two
offioea     oannot be held by the same person,           eooeptance    and
quellfloatlon       for the aeoond offlca       operatea   Ipso faoto aa
e resignation       of the former offloe.        Peultt   v. Glen Roae In-
dependent Sohool Dletriot          No. 1, supre.
            Under Artiole XVI, Seation 40, of the Constitution,
if a aupervlaor       in the soil aonaervatlon      dlatrlot    holds “of..
f 106 of emolument”,       auoh peraon oannot at the ~aame time hold
or exerolae      8 State or oounty offiae      of emolument unless the
other State or oounty offloe of emolument La one whioh la
named in the exoeptlon        provided to Artlole      XVI, Seotlon 40,
of the Constitution,         Slnoe, under auoh olroumatenoea,          the
aame peraon oould not hold or exeraiae           both offloea,      It neo-
eaaarily    follows thrt he oould not reoelve           the oompenaation
attaohing     to both.     To determine  the apglloablllty       of Article
XVI, Seatton 40, to your queatiOn0,          therefore,      It beoomea
neoeaaary     to Oonaider whether a auperviaor          in a a011 oonaer-
vrtlon dlatriot holda an “offloe of em01ument”.
          The orlterla for determining    whether a publio
employment la a public offloe of a 01~11 nature are well
stated In  the oaae of the State of Montena, ex rel. Julius
Barney v. R. N. Hawklna, Seoretary     of State,  257 Pac. 411,
53 A. L. R. 583:
Mr. V. C. Marshall, Administrator, Page ji (O-3395)


         '"After an exhaustive examination of'the
     authorities we hold that five elements are in-
     dlspensible in spy position of public employ-
     ment, in order to make it a public office of
     a civil  nature: (1) It must be create,dby the
     Constitution or by the legislature or created
     by a municipality or other body through author-
     ity conferred by the legislature; (2) It must
     possess a delegation of a portionof the sover-
     eign power of government, to be exercised for
     the benefit of the public; (3) The powers con-
     ferred, and the duties to be discharged, must
     be defined, directly or impliedly, by the le -
     islature or through legislative authority; (fi)
     The duties must be performed Independently and
     without control of a superior power, other than
     the law, unless they be those of an inferior
     or subordinate office, created or authorized by
     the legislature, and by it placed under&e genera1
     control of a superior officer or body; (5) It
     must have some permanency and continuity, and
     not be only temporary or occasional."'
          See also the a,uthoritiescited in our opinions
Nos. o-518; and O-490, copies of each of which are enclosed
herewith.
         An examination of the provisions of the Soil Con-
servation Act, (Arts 1939, 46th Legislature, page 7) and
particularly Sections 5, 6, 7, 8 and 9, of that Act, convinces
us that the supervisors of a soil conservation district hold
civil offices of emolument. By the Act, such districts are
constituted governmental subdivisions of this State and pub-
lic bodies corporate and politic; governing body of the dis-
trict is made to consist of five supervisors; a method by
which such supervisors are selected is described in detail;
the term of office of each supervisor is prescribed by the
Act and the Act provides that each supervisor shall hold
his office until his successor has been elected and has
qualified; the Act provides that each supervisor may re-
ceive compensation for service on a per diem basis and the
necessary expenses incurred for services other than those
performed within the district; the supervisors are given
authority to employ such officers, agents and employees,
Mr. v. C. Marshall, Administrator, Page 4, (O-3395)

permanent and temporary, as they may require, and to deter-
mine their qualiilcatlons, duties, and compensation and to
delegate to such agents or employees as they may employ and
select, such powers and duties as they may deem proper; and
the powers and duties public in character, to be exercised
by the supervisors 88 the governing body of the district,
are specifically provided in great detail by the Act. It
thus appears that eaoh of the criteria essential to the ex-
istence of a public office as set forth in the Woontanacase
above referred to, exists with respect to the supervisors
of the soil conservation districts.
         Since we have determined that the supervisor of
a soil conservation district holds a public office, within
the meaning ol Article XVI, Section 40, and since itis
manif'estthat such office is civil rather than military  in
character, theily question remaining to be declded~to de-
termine the applicability of Article XVI, Section 40, to such
office, is whether such civil office is one of emolument.
         The term "emolumentn means a pecuniary proftt,
gain or advantage. 34 Texas Jurisprudence, page 349. The
supervisors of the soil conservation districts are entitled,
under the provision of the State Soil Conservation Ac,t, to
receive compensation !'forservioe not to exceed Pour Dollars
($4.00) for each day he shall be In actual attendance upon
the duties of the office wtthin the district, not to exceed
twenty (20) da s in any one calendar year, and not to exceed
Four Dollars (i 4.00) a day and the necessary expenses ln-
curred for services other than within the distrlct;~.except
by approval OS the State Board." It is our opinion that
the compensation or remuneration provided by law for super-
visors Is clearly a pecuniary prof'it,gain or advantage,
and that such civil office is therefore an office of emolu-
ment, within the meaning of Article XVI, Section 40, of our
Constitution.
         We trust that the foregoing will answer your question.
                                    Very truly yours
                               ATTORWEY GENERAL,OF TEXAS
                                      /s/ R. W. Fair6hild

                               BY
                                         R. W. Fairchild
APPROVED APR. 23, 1%                     Assiatant
/a/ Grover Sellers
FIRST ASSISTANT                    APPROVED
ATTORNEY GENERAL                    OPINION
                                  COMMITTEE
                                 By B.W.B.
RWFrLMrELB                         Chairman
