Honorable J; A. Amis.      Jr:            Opinion No. O-2226
County Attorney
Rains County                              Re:   Holding two offices--con-
Emory,   Texas                                  stitutional provisions   con-
                                                strued--   member,   County
                                                B~oard of School Trustees
                                                and member of local com-
                                                munity committee,     Agricul-
                                                tural Adjustment    Administra-
Dear Sir:                                       tion.

                Your reqwast for .an opinion as to whether one per-
son, at the same time may ser.ve as a member of the county
board of school trustees and as a member of a local community
committee    operating under and suprrvised    by the United States
Department of Agriculture     through the Agricultural  Adjustment
Administration,    has been received and carefully   considered by us.

                 The determination    of then question submitted must
be grounded     upon an interpretation    of the provisions   of the Texas
Constitution.    Section ,12 of Article   16 of the Constitution reads as
follows :

                “No ~member of Congress,      nor person holding
         or exercising    any office of profit or trust, undrr the
         United States, or either of them, .or under any for-
         eign power, shall be eligtble as a member of the Leg-
         Mature,    o,r hold or e%ercise any office of profit or
         trust under this State.”

                Section   33 of Article     16:

                 “The Accounting Officers of this State shall
         .;either 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
Honorable   J. A. Amis,    Jr., page 2




        profit,   under this State or the United States,
        except    as prescribed  in this Constitution. * * *.”

               The pertinent   provision   of section   40 of Article
16 is as follows:

              ‘No person shall hold or exercise,   at the
        same time, more than one civil office of emolu-
        ment, except that of justice of the peace, county
        commissioner,    notary public and postmaster   * * *
        unless specially provided herein * * * .”

               The election, qualification,   service,  duty and
compensation    of members     of the county board of school trus-
tees is prescribed    by Title 49, Chapter 11 of the Revised Civ-
il Statutes of Texas,   1925. as amended (Articles     2676 et seq.,
Vernon’s   Annotated Texas Statutes.)      Such members    serve for
a definite term, receive compensation       on a per diem basis pay-
able out of the State and County Available     School Fund by war-
rants drawn on order of the County Superintendent and signed
by the President   of the county board, and take the official oath
of office.

               By Act of Congress,      Public No. 430. Se.venty Fifth
Congress.    Chapter 30. Third Session, H. R. No. 8505, Title 1.
Section 101. the Secretary     of Agriculture   was authorized to set
up such regulations    as might be required in administering         the
Agricultural   Adjustment    Administration    program.     Pursuant
to such delegation of authority, in the Articles       of Association,
under which the various counties operate,‘provision          is made
for county and local committeemen         to be elected by producers
in the county upon their receiving a majority        of the votes cast
for the position to which they are elected.        Local commtttee-
ment are elected to serve from January 1 to December              31 of
the current year, or until their successors        have been duly elected.
Local committeemen       are not required to take an oath of office;
they do not receive a stipulated salary, but are paid at a certain
rate per diem for the days which they serve.          (This inform,ation
furnished per l,ettei, E. N. Holmgreen,       Administrative     Officer in
charge, Agricultural    Adjustment Administration,        United States
Department    of Agriculture,    College Station, Texas.)
Honorable    J. A. Amis,   Jr.., page 3




                Under the title   “Public Officers”, Texas    Juris-
prudence    gives the following   statement~df the law:

               “Many judicial definitions of ‘public office’
        are to be found in the reported cases, butthey are
        substantially  of the same import.     It is said to be
        a right to exercise   a public function or employment
        and take the fees and emoluments       belonging to it;
        ‘a publi: station or employment      conferred by the
        appointment of government’;     and ‘the right; authority
        and duty created and conferred by law, by which, for
        a given period, either fixed by law, or enduring at
        the pleasure of the creating power, an individual is
        invested with some portion of the sovereign function
        of the government,    to be exercised   by him for ‘the
        benefit of the public.’   The individual so invested is
        a public officer. He is a person who exercises  some
        functions of the government  -- one who is commisl
        sioned or authorized to perform any public duty.”
        (34 Tex. Jur. 322).

               .From the case of Commissioners   Court of Lime-
stone County vi Garr’ett, (Corn. App.) 236 S.W. 970 at p. 972. we
take thenfollowing quotation from Mechem on Public Officers:

               “Public officers are usually required by law
        to take the oath of office, and this fact goes far in
        determining    the character   of the duty. But the tak-
        ing of the oath is not an indispensable     criterion,    and
        the office may exist without it, for, as has been said,
        the oath is a mere incident, and constitutes no part
        of the office. * * *, If a duty be a continuing one, which
        is defined by rules prescribed      by the government,      and
        not by contract, which an individual is appointed by
        government    to perform,    who enters on the duties per-
        taining to his station without any contract defining
        them, if those duties continue though the person be
        changed. it seems very difficult to distinguish such a
        charge or employment       from an office or the person
        who performs     the duties from an officer.     * * *~ ”
Honorable   J. A. Amis.    Jr.,   page 4




                The same    authority   contains   the following    state-
ment:

                y ‘A man is not the less a public officer
        where his authority is confined to narrow limits;
        for it is the duty .of his office and the nature of
        that.duty which make him an officer, a&not        the
        extent of his authority.’    See Me&em    on Public
        Officers,   § 9.”

                in the Supreme Court case of Kimbrough             v. Bar-
nett, 93 Tex. 310, 55 S.W. 122, is the following:

               ‘Public office is the right, authority, and
        duty created and conferred by law by which, for
        a given period either fixed by law or end,uring at
        the pleasure of the creating power, an individual
        is invested with some.,portion   of the sovereign
        functions of the governm~ent to be exercised     by
        him for the benefit of the public.”

             From the case of State of Montana, ex rel. Julius
Barney v. R. N. Hawkins, Sacretary  of State, ,251 P. 411. 53
A. L. R. 583 (1927) we quote:

                “After an exhaustive examination       of the au-
        thorities,   we hold that five elements are indis-
        pensable in any position of public employment,           in
        order to make it a public office of a c%vil nature:
        (1) It must be created by the Constitution or by
        the Legislature     or cremated by amunicipality      or
        other body through authority conferred by the Leg-
        islature;   (2) it must possess    a delegation of a por-
        tion of the sovereign power of government,          to be
        exercised    for the benefit of the public; (3) the pow-
        ers conferred,     and the duties to be discharged., must
        be defined, directly or impliedly,       by the Legislature
        or through legislative     authority; (4) the duties must
        be performed      independently and without control of a
        superior power, other than the law, unless they be
        those of an infereior or subordinate office. created
Honorable   J. A. Amis,   Jr.,   page 5




        or authorized by.the Legis,latpre,  Andyby it
        placed under the general control of a superior
        officer or body; (5) it must haves some perma-
        nency and continuity, and not be only temporary
        or occasional.”

               That a member of the county board of school
trustees holds an “office”;    that it is an office of ‘profit or
trust”; also an  “office  or position   of honor, trust or profit”
and a “civil office of emolument”      is not open to question.
See Hendericks    v. State, (Civ. App.) 49 S.W. 705; Thomas v.
Abernathy County Line Independent School District (Corn. App.),
~290 S. W. 152; Commissioners’       Court of Limestone     County v.
Garrett (Corn. App.). 236 S.W. 970; 34 Tex. Jur. 331 an~dcases
cited under § 7.

                 With the exception of the taking of an official
 oath, it appears to us that a member of a local community
 committee    meets the presciibed    essentials as an “officer”
 and holds an ‘office” within the contemplation     of our consti-
 tutional inhibitions.   According  to Mechem’s   statement, -quoted
with approval by our Commission        of Appeals in Limestone     Coun-
.ty V. Garrett, supra, the taking of an oath is not an indispensable
 criterion,  all the other elements being present.

               As was said in our opinion No. O-490       on March   17.
1939:

                ‘The restraint against a person exercising
        or holding more than one civil office of emolu-
        ment might appear to be a manifestation        of a super-
        abundance of caution on the part of the framers        of
        the constitution,  where the offices are not of major
        importance,    or of high financial remuneration,     as
        is the present case.    On the other hand, said prohi-
        bition can amount to a protection of fundamental
        rights and liberties,   and a bulwark of democratic
        institutions and principles.     Consequently,   regard-
        less of the personalities,   offices and compensation
        involved, the constitutional   mandate must be strictly
        obeyed.”
Honorable      J. A. Amis,   Jr..   page 6




              You are therefore advised that in our opinion
one person may not, at the same time, hold the office of
county school trtitee and act as a IocaI community committee-
man under the Agricultural   Adjtistmcnt Act.

                                                  Yours       very truly

                                             A-I’TORNEY GENERAL-OF.
                                                      TEXAS

                                             By    /s/     Benjamin Woodall
                                                                 Assistant



APPROVED        MAY   23. 1940

/s/   Gerald    C. ‘Mann

ATTORNEY         GENERAL      OF’ TEXAS

                                                                             :.
BW:jti:da
                                                                           ,..

                                                         .&PROVED    OPINLON
                                                            COMMITTEE    ‘.


                                                         BY        BWB
                                                              Chairman