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                                AUSTIN ~~.TExAs~           ,
JOEIN BEN s3EIcPPE~ID                                      1    ‘~;g&
  Az-x01Mls1
           OENlOrnAL            July 27, 1953

        Hon. .Archle 8 ., ~HcDonald      Opinion No. S-74
        County Attorney
        ,&ore County                     Re: Ability of the county to
        Dwau, Texas                          make a vallcl tax levy when
                                             one county commissioner is
                                             absent beca:use he is in the
        Dear Mr.. McDonald:                  armed forces.
                   You have re,queated the opinion of this office
        ,conoernlng the validity  of a tax levy by Commi,asionera I
        Court while one Commissioner 18 absent because of his
         induotlon into the active military   servicQ of the United
        States, and &e 'to the validity  of paying his salary dur-
        ing his absence.
                   You’have adriined us that the Comml#aloner in
        question was industed Into a reserve component of the
        Armed Forces, a& distinguIshed   from a regular component.
                      Art~icle 2343, Vernon’s     Civil   Statutemr, stat.ea
        that t
                       ‘Any three members of the said court,
                 including the county judge, ahall constitute
                 a quorwl for the trfins,aation of any business,
                            ,t OS levu.lra a oount~ ta+” (Emphaeis

                      Article   2354, Vernon’fi   Civil   Statutes,         provides:




                   Of like mavwt     19 Article 7045, VernonQ Civil
        Statute&    The&e provisIons   are mandatory that all mem-
        berfb of the CPmmlnaLonercr’Court muat attend, the regular
        B,,emlon OS ths c.ouPt In which any oount,y tax is l,e,v,Led.
 Hon. Archle     S. McDonald, page 2 (S-74)



                  , 41 S.W.2d
 Free v. Scarborouprh,          672,(Tex.Clv.App.
                       70 Tex. 714                1,931i ;
                                      8 S.W. 490 (1888"j
                   1477 (1939); Att’y Gen. op. O-4335


            Section 40 of Article    XVI of the Const&tutlon
 of TexaB provide6i that. one hol,dlng a civil  office of
 emolument under the State of Texas does not vacate the
 office  bu becomlna a member of a reserve unit of the



. Hamilton v.
  GeniOp. O-b2
            “To our minds,, it is illogical       to con-
      tend that the construction      we have given
      these ccnstltutlonal    provisions   would make
      it imposelble for a county commissloner~8
      court to fix tax rates,     if a member thereof
      should be absent for the same reason, Judge
      Dixon. was absent, .because Article     7045 of
      our Civil Statutes requires all members of
      ,such courts to be present when county tax
      rates are fixed.     Certainly a statute cannot
      override the ConstltutlonL       Where the Consti-
      tution permits a member to be abs,ent,, a
      atatute cannot require him to be present.
      It follow~ti that in such iw,$ance     Article
      7045, suwa,    cannot  be  applied  as  to the
      member absent by constitutional      authority.”
      Cramer v. Sheppard, ,supra, p. 155.
              Sinc,e Sectlon40    of Article XVI of the Texas
 Constitution    permits a member of commissioners1 court to
 be a member of a reserve unit of the Unlted States armed
 furces almultaneoualy,      and his presence Is required under
 federal law outside the limits of his county. then the
 provisions    of Articles   2343, 2354 and 7045, V.C.S.,     can-
 not require him to be present at a sesalon of the court
 in wh&ch a county tax ia levied,        and thes,e statutory  re-
 auirements therefore      do not aonlv as to the member absent
 by~con#tltut&on@l     suthority,   -$ramer
 InBoftW aa Att'y Qene OP, O-4389 (194
 the holding herein It la expressly ,o
Hon. Archle     S. McDonald, page 3 (b-74)


              Even though he is absent from the county in
military     service the oommlsoioner I$ entitled        to his
cLalary, Salary and emolumentmrare Incident to the
ta th,e office. and not to ItEe,o~acupatlon or the per
of offlc,lal     i¶Ihle#k+ .Markure.l.ll v .,., Galpe t.
273 (Tex&lv.App~, 1943, error ref .),,; i&8$' 0::: &! :f62 45,
aupra.



              Articles 2343, ,?3,54:and 7045, V.C.S.,
         do not require a commis,eioner to be present
         at a term of commiaaloners    court at*which
         a county tax ia levied if the Texas Constl-
         W&Ion and fe,derarlaw permit8 his absence
         in military aer&oe In a reserve component.
         During his absence he is entitled   to the
         salary of his office*
                                   Yours very truly,
kPPROVED:                          JOHNBEN SIiEiPPEFiD
                                   Attorney General
J, C, Davis, Jr.
Cg'unty Affalre Divi,slon
Wi,llis En Gresham                 BY
Reviewer
Robert S. Trottl
First Aaalatant
John Ben Shepperd
Attorney Qtnkral
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