Untitled Texas Attorney General Opinion

February20, 1987 HonorableSteve W. Simons OpinionNo. ~~-634 DistrictAttorney 303 City-CountyBuilding Re: Whether a member of a school El Paso, Texas 79901 board of trusteesmay serve as a city alderman or councilmanfor an incor- porated town situated within the boundariesof the schooldistrict Dear Mr. Simmons: You ask for our opinionon the followingquestion: Whether a member of a board of trustees [of a school district] governed by section 23.01 gt 5. of the Education Code, may serve simul- taneouslyas a city aldermanor councilmanof an incorporatedtown within the boundaries of the school district? One impedimentto dual office holding is the coeuaonlaw rule of incompatibility; this doctrineprohibitsone person from holding two offices if the duties are in conflict or if one is subordinateto the other. See Thomas V. Abernathy County Line IndependentSchool District. 290s.W. 152 (Tex. Comm'n App. 1927); State V. Martin, 51 S.W.2d 815 (Ten. Civ. App. - San Antonio 1932, no writ); Attorney General Opinion Nos. JM-133, JM-129 (1984);Letter Advisory Nos. 114 (1975);86 (1974). This officehas assertedthat in most instances,whether or not two positions are legally incompatibleIs a fact questionto be determinedinitiallyby those having supervision In one or both of the positionsheld by the person in questionand, ultimately,by the courts. Letter AdvisoryNo. 62 (1973). Althoughthere have been few appellate decisionsidentifyingwhich officesare incompatible,the questionyou pose has been addressed in a judicial decision with facts closely matchingthose In your opinionrequest. In Thomas V. AbernathyCounty IndependentSchoolDistrict,=, the Incorporatedtown was within the school district territory. Two p. 2870 HonorableSteve W. Simmons- Page 2 (JM-634) school trustees were subsequentlyelected to the office of town alderman. Since the boundariesof the school district and the city overlapped.the competing interests of the two jurisdictionsraised the potential for conflict. The court w*s especially sensitive to this potentialfor conflictwhen it concluded: In our opinion the offices of school trustee and aldermen are Incompatible; for under our system there are in the city council or board of aldermen various directory or supervisorypowers exertable In respect to school property located within the city or town and in respect to the duties of school trustee performablewithin its Mmits - *, there might well arise a conflict of discretion or duty In respect to health. quarantine,sanitary.and fire preventionregula- tions. See articles1015. 1067, 1071.R. S. 1925. If the same person could be a school trusteeand a member of the city councilor board of aldermenat the same time, school policies,in many important respects, would be subject to discretionof the council or aldermen instead of to that of the trustees. Id. at 153. In reachingIts conclusionconcerninglncompatlbllty, the Thomas court established for the offices in question a safeguard against conflicting duties attenuating faithful public service. Grounded in this concern. the incompatibilitydoctrine "protectsthe integrity of state institutionsby promoting impartial service by public officials." Attorney General Opinion m-203 (1984) at 3. A city council or board of aldermen thus has powers and duties which conflict with the legal role of school trustees. Accordingly,the court held that the public officesof trusteeof an independentschool districtand aldermanor councilmanwere incompatiblepositions. &; see also Letter AdvisoryNo. 149 (1977). Therefore,In our opinion,the lncompatibllltydoctrineprohibits a member of the Board of Trustees of the Socorro IndependentSchool Districtfrom simultaneously servingas aldermanor councilmanfor the town of Socorro,which is situatedwithin the boundariesof the school district. Althoughyour request does not indicatewhich of the two offices In question was first occupied. we nonetheless advise you of the common law principleof vacation: If a person holding an office Is elected or appointedto another (wherethe two officescannot be legallyheld by the same person) and he accepts p. 2871 L. EonorableSteve W. Siamons- Page 3 (JK-634) and qualifies as to the second, such acceptance and qualiflcatlonoperate, Ipso facto. as a re- sign&ion of the former office. Pruitt v. Glen Rose IndependentSchoolDistrictNo. 1, 84 S.W.2d 1004, - 1006, opiniou adopted (Tax. also Thomas v. AbernathyCounty Line IndependentSchool District, 290 S.W. at 153. In other words, given two incompatibleoffices, the occupant of one office who assumes another vi11 be held to have vacated or resigned the first. See Attorney General Opinion m-133 (1984); Letter Advisory No. 64(1973). As a result. the individualinvolved here would eithervacate the office of aldermenor councilmanupon assuming the office of trustee,or vacate the office of trusteeupon assuming the office of aldermanor councilman. In your brief, you Inquirewhether article XVI. section 40, of the Texas Constitutionapplieshere. Since the common iaw doctrineof incompatibilityIs dlsposltiveof the issue raised In your opinion request,we need not reach the constitutional question. SUMMARY The common law rule of incompatibility prevents one person from serving as trustee of the Soccoro IndependentSchool District and at the same time serve as alderman or councilman of the town of Socorro. J I-M MZTTOX AttorneyGeneralof Texas JACX HIGHTOWER First AssistantAttorneyGeneral UARYKELLER F,xecutive AssistantAttorneyGeneral RICK GILPIN Chairman,OpinionCommittee Preparedby Jeff Millstone AssistantAttorney General p. 2872