Can the same person be a county treasurer and a school board trustee in Texas at the same time?

Plain-English summary

The Wheeler County Attorney asked the Attorney General a straightforward dual-office question. A person had been elected in May 2001 to finish a three-year term as a trustee of the Wheeler Independent School District. She was later appointed by the Wheeler County Commissioners Court to finish a four-year term as Wheeler County Treasurer. Could she hold both at once? The Attorney General concluded that she could.

Two legal barriers could have blocked the combination, and the opinion worked through both. The first is article XVI, section 40 of the Texas Constitution, which says no person may "hold or exercise at the same time, more than one civil office of emolument." Both school trustee and county treasurer are "offices" because each carries a sovereign function of government. But an "office of emolument" means a paid office, an office that brings a pecuniary profit or gain beyond actual expenses. Education Code section 11.061(d) requires school district trustees to serve without compensation, so the trustee position is not an office of emolument, and section 40 does not bar holding it alongside a paid office.

The second barrier is the common-law doctrine of incompatibility, which forbids one person from holding two offices whose duties clash. The opinion reviewed the county treasurer's duties as chief custodian of county funds (receiving, accounting for, depositing, and disbursing the county's money) and concluded that those duties were not, as a matter of law, incompatible with serving as a school trustee. If a dispute ever arose over money owed by the school district to the county, the opinion noted, the Commissioners Court, not the treasurer, would be the proper party to sue, which avoids the kind of direct conflict the doctrine guards against. The opinion closed with a practical caution that had nothing to do with the answer: article XVI, section 65 of the Constitution can force a county treasurer to automatically resign if she announces or becomes a candidate for another office while more than one year is left on her treasurer term.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The constitutional and statutory provisions cited here may have been amended since 2002.

What the opinion meant for those who asked

The Wheeler County Attorney (what the opinion held for her): The opinion answered the specific question put to it: as a matter of law, neither article XVI, section 40, nor the common-law incompatibility doctrine barred the same person from holding the county treasurer and school trustee offices simultaneously.

County treasurers and school board trustees (what the opinion held for them): The opinion held that because a school trustee serves without compensation, that office is not an "office of emolument" and the constitutional dual-office bar does not reach it, and that the treasurer's fund-custody duties were not legally incompatible with trusteeship.

Officials weighing a run for a second office (what the opinion held for them): The opinion flagged that article XVI, section 65 effects an automatic resignation of certain officers, including county treasurers, who become candidates for another office of profit or trust while more than a year of the current term remains.

Common questions

Can a county treasurer also serve on a school board in Texas?
The opinion concluded that, as a matter of law, a county treasurer was not barred from also holding the office of trustee of an independent school district within her county.

Doesn't the Constitution forbid holding two offices at once?
Only two paid offices. Article XVI, section 40 bars holding more than one "civil office of emolument." Because Education Code section 11.061(d) makes the school trustee position unpaid, it is not an office of emolument, so the bar does not apply.

What about the rule against holding incompatible offices?
The opinion found the county treasurer's duties (custody and disbursement of county funds) were not legally incompatible with serving as a school trustee. It noted that a suit to recover funds owed by the district to the county would be brought by the Commissioners Court, not the treasurer.

Is there any catch?
Yes, a timing one. Under article XVI, section 65, a county treasurer who becomes a candidate for another office while more than a year remains on her term automatically resigns the treasurer's office.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." Both offices here qualify as "offices" because each holder exercises a sovereign function of government largely independent of the control of others. Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). An "emolument" is "a pecuniary profit, gain or advantage," Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944), and includes any amount received in excess of actual expenses. Because Education Code section 11.061(d) requires school district trustees to "serve without compensation," Tex. Educ. Code Ann. § 11.061(d) (Vernon 1996), the trustee office is not an office of emolument, and section 40 does not bar it.

On the common-law side, the opinion examined the county treasurer's role. The treasurer is the "chief custodian of county funds," Tex. Loc. Gov't Code Ann. § 113.001 (Vernon 1999), who keeps an account of the county's receipts and expenditures, id. § 113.002, receives all money belonging to the county, id. § 113.003, deposits collected money in the county depository, id. § 113.021(a)-(b), and disburses county money as required by law and as the commissioners court may direct, id. § 113.041(a) (Vernon Supp. 2002). Disbursement is a core function the treasurer alone holds. Agan v. Comm'rs Court of Titus County, 922 S.W.2d 640, 645-46 (Tex. App.-Texarkana 1996, writ granted), aff'd in part, rev'd in part, 940 S.W.2d 77 (Tex. 1997). The treasurer also has a ministerial duty to endorse a warrant unless she doubts its legality or propriety. Tex. Loc. Gov't Code Ann. § 113.041(d) (Vernon Supp. 2002). The opinion concluded these duties did not make the office legally incompatible with a school trusteeship.

Finally, the opinion cautioned that article XVI, section 65 of the Constitution effects the automatic resignation of certain officers, including county treasurers, who become candidates for another office of profit or trust while the unexpired term then held exceeds one year. Tex. Const. art. XVI, § 65(b); see Ramirez v. Flores, 505 S.W.2d 406, 409 (Tex. Civ. App.-San Antonio 1973, writ ref'd n.r.e.) (county commissioner automatically resigned when he sought a school trustee seat with more than a year left on his term).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40
• Tex. Const. art. XVI, § 65(b)
• Tex. Educ. Code Ann. § 11.061(d) (Vernon 1996)
• Tex. Loc. Gov't Code Ann. § 113.001 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 113.002 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 113.003 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 113.021(a)-(b) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 113.041(a) (Vernon Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 113.041(d) (Vernon Supp. 2002)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944)
• Agan v. Comm'rs Court of Titus County, 922 S.W.2d 640 (Tex. App.-Texarkana 1996, writ granted), aff'd in part, rev'd in part, 940 S.W.2d 77 (Tex. 1997)
• Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App.-San Antonio 1973, writ ref'd n.r.e.)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JM-1266 (1990)
• Tex. Att'y Gen. LO-95-001
• Tex. Att'y Gen. LO-96-078

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0490
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0490.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor errors may remain, and two mid-opinion passages marked [. . .] were not recoverable from the source extraction; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

April 15, 2002

The Honorable Bobbye C. Hill
Wheeler County Attorney
P.O. Box 469
Wheeler, Texas 79096

Opinion No. JC-0490

Re: Whether a member of a school district board of trustees may simultaneously hold the office of county treasurer (RQ-0458-JC)

Dear Ms. Hill:

You have requested our opinion as to whether a member of the board of trustees of an independent school district may simultaneously hold the office of county treasurer. For the reasons explained below, we conclude that she may do so.

You indicate that on May 5, 2001, a particular individual was elected to fill the balance of a three-year term as a trustee of the Wheeler Independent School District. Subsequently, she was appointed by the Commissioners Court of Wheeler County to fill the balance of a four-year term as Wheeler County Treasurer. You ask whether she may simultaneously hold both positions.

Article XVI, section 40 of the Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." Both of the positions of which you inquire are "offices," in that the holders thereof exercise a sovereign function of government "largely independent of the control of others." See Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). An "emolument" for purposes of article XVI, section 40, has been described as "a pecuniary profit, gain or advantage." Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944). It includes any amount received in excess of actual expenses. Tex. Att'y Gen. Op. No. JM-1266 (1990) at 3; Tex. Att'y Gen. LO-95-001, at 2. Section 11.061 of the Education Code requires that trustees of an independent school district "serve without compensation." TEX. EDUC. CODE ANN. § 11.061(d) (Vernon 1996). Because the office of school trustee is therefore not an "office of emolument," it follows that an individual is not barred by article XVI, section 40 from

[. . .]

(2000) at 2. We must therefore determine whether there are any duties ascribed to the office of county treasurer that would render its holding incompatible with that of school district trustee.

The county treasurer is the "chief custodian of county funds," who "shall keep in a designated depository and shall account for all money belonging to the county." TEX. LOC. GOV'T CODE ANN. § 113.001 (Vernon 1999). As chief custodian of county funds, the treasurer's duty is to "keep an account of the receipts and expenditures of all money that the treasurer receives by virtue of the office and of all debts due to and owed by the county." Id. § 113.002. The treasurer is to "receive all money belonging to the county from whatever source it may be derived." Id. § 113.003. "The fees, commissions, funds, and other money belonging to a county shall be deposited with the county treasurer by the officer who collects the money," and the "county treasurer shall deposit the money in the county depository in a special fund to the credit of the officer who collected the money." Id. § 113.021(a)-(b). The treasurer is also directed to "disburse the money belonging to the county," and to "pay and apply the money as required by law and as the commissioners court may require or direct, not inconsistent with law." Id. § 113.041(a) (Vernon Supp. 2002). See Agan v. Comm'rs Court of Titus County, 922 S.W.2d 640, 645-46 (Tex. App.-Texarkana 1996, writ granted), aff'd in part, rev'd in part, 940 S.W.2d 77 (Tex. 1997) (disbursement of funds is one of the "core functions" of county treasurer's office and therefore treasurer has the "sole power" to disburse funds). The treasurer has a ministerial duty to endorse a warrant presented to her unless she has doubts about the "legality or propriety of an [instrument] presented . . . for payment." TEX. LOC. GOV'T CODE ANN. § 113.041(d) (Vernon Supp. 2002).

A number of other statutes peripherally

[. . .]

does not as a matter of law preclude a justice of the peace from serving as a part-time juvenile law master in the same county, this office cautioned that "conflicts may arise between the two positions," because "justice courts have limited jurisdiction over truancy matters," and because "[t]here may be other circumstances in which the jurisdiction of a justice court brings the justice of the peace into contact with matters pertaining to juvenile law or a particular juvenile matter." Tex. Att'y Gen. LO-96-078, at 3. The opinion accepted the justice's assertion that "he would ask the court 'to describe my duties in such a way that I would not have jurisdiction over a minor charged with truancy in any justice court.'" Id. Likewise, in the situation you pose, if it was determined that funds were owing to Wheeler County by the Wheeler Independent School District, the Commissioners Court would be the proper party to initiate suit to recover those funds.

We conclude that a county treasurer is not, as a matter of law, barred by either article XVI, section 40, or the common-law doctrine of incompatibility from holding the office of trustee of an independent school district within his or her county. We caution, however, that article XVI, section 65 of the Texas Constitution, may complicate such dual service in the long term. That provision effects the automatic resignation from office of certain county and district officers, including county treasurers, who announce their candidacy or become a candidate for another office of profit or trust "at any time when the unexpired term of the [county or district] office then held shall exceed one (1) year." TEX. CONST. art. XVI, § 65(b); see also Ramirez v. Flores, 505 S.W.2d 406, 409 (Tex. Civ. App.-San Antonio 1973, writ ref'd n.r.e.) (holding that county commissioner automatically resigned under article XVI, section 65 of Texas Constitution when he applied to have his name placed on ballot as candidate for trustee of county independent school district while more than one year of his term as county commissioner remained).

SUMMARY

A county treasurer is not, as a matter of law, barred by either article XVI, section 40 of the Texas Constitution, or by the common-law doctrine of incompatibility from simultaneously holding the office of trustee of an independent school district located within her county.

                              JOHN CORNYN
                              Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee