Untitled Texas Attorney General Opinion

QBffice of the IBttornep&neral Bbtateof lltexarr DAN MORALES ATTORNEY CENERAL Deamber 12.1994 Mr. Lionel R Meno Opinion No. DM-3 11 commissioner of Education Texas Education Agency Re: whether the offices of county 1701 North Congress Avenue commissiona and public school district Austin, Texas 78701-1494 trustee are incompatible (RQ-690) You ask whetherthe offices of county commissioner and public school district trustee are incompatible. The common-law doctrine of incompatiiity prohibii one person from holding two offices where one office might impose its policies on the other or subject it to control in some other way. Attorney General Opinion JM-129 (1984); see also i%omas v. Abematly Cow@ Line In&p. Sch. Diti., 290 S.W. 152 (Tex. &mm% App. 1927, judgm’t adopted); Stole ex rel. Brentam v. Mmlin. 51 S.W.Zd 815 (Tex. Civ. App.-San Antonio 1932, no writ). In Attorney General Opiion TM-129, this office concluded that the doctrine of incompatibiity prevented a member of a board of trustees of a community college gem serving as a county commissioner. You enclose a letter written by the Texas Education Agency’s chief counsel to a citizen concluding that the two offices at issue here are incompatible on the basis of Attorney General Opiion TM-129. The letter argues that the two offices are incom- patible, in part, because of the duties assigned to county commissioners in chapter 19 of the Texas Education Code, which provides for the creation of countywide independent school districts and for the detachment, annexation, and consolidation of school districts. A county commissioners court has various duties under chapter 19. Some appear to be ministerial, see, e.g., Educ. Code $3 19.003(g) (duty to canvass the returns and declare the result of an election under chapter 19), .022 (duty to enter order redetlning boundaries of school district following certain elections), .024 (duty to order an election on petition for creation of a school district by detaching territory from existing districts), ,054, .083, but others are clearly discretionary in nature. For example, a commissioners court is required to equitably allocate indebtedness when school districts assume a portion of the indebtedness of another, and to equitably allocate personal property between receiving districts. Id. 3 19.004. Section 19.021 authorizes a commissioners court to create enlarged districts by annexing one or more school districts, provided that a majority of the board of trustees of each affected district approves the annexation. Under section 19.023, annexation of school districts in certain counties may be initiated by petition. Subsection (d) requires the county commissioners court to conduct a hearing to consider the social, economic, and educational effects of the proposed annexation. Id. 8 19.023(d). p. 1659 Mr. Lionel R Meno - Page 2 (DM-311) The county commissioners court is required to order an election only if it determines that the proposed amtexation appears to be in the best interests of the school districts affected. Id. In addition, a wunty wmmissioners court is authorized to abolish and ammx any common school district located entirely within its county if a format application or request is submitted by the trustees of the wmmon school district. Id. 5 19.171(a): “The wmmissioners court shah ammx the territory of the abolished district to one or more wntiguous independent school districts located entirely within its county, in such manner as may be determined by order of the wmmissioners court.” Id. 5 19.17 1(b); see also id. 58 19.024(h) (duty to appoint board of trustees following creation of certain school districts),.025..026,:056. Based on our review of chapter 19 of the Education Code, we agree with the Texas Education Agency’s conclusion that the offices of wunty wmmissioner and public school district trustee are incompatible because the statutory basis exists for a county commissioners court to impose its policies on a school district or otherwise control it with respect to detachment, annexation and consolidation. We note that on several occasions, this office has held that the offices of county wmmissioner and public school district trustee are not incompatible. See Attorney Genera) Opiions C-43 (1963); V-63 (1947); Letter Opinion No. 92-10 (1992). These prior opinions failed to consider the role of the county wmmissioners court in the detachment, annexation, and wnsolidation of school districts. Accordingly, Attorney General Opinions V-63 and C-43 and Letter Opiion No. 92-10 are overruled to the extent they are inwnsistent withjhis opinion. SUMMARY The offices of county wmmissioner and public school district trustee are incompatible. Attorney General Opinions V-63 (1947) and C-43 (1963) and Letter Opinion No. 92-10 (1992) are overruled to the extent they are inconsistent with this opinion. DAN MORALES Attorney General of Texas p. 1660 Mr. Lionel R Meno - Page 3 (DM-311) JORGE VEGA Fii Assistant Attorney General DREW T. DURHAM Deputy Attorney Gened for Crimind Justice JAVJER AGUILAR Special Assistant Attorney General RENEAH.rcKs State Solicitor SARAH J. SHIRLEY Chair, Opiion Committee Prepared by May R. Crouter Assistant Attorney General p. 1661