Untitled Texas Attorney General Opinion ( 2017 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
January 3, 2017
The Honorable Sharen Wilson Opinion No. KP-0125
Tarrant County Criminal District Attorney
401 West Belknap Re: Simultaneous service on the board of
Fort Worth, Texas 76196 trustees of a public library district and on the
city council (RQ-0115-KP)
Dear Ms. Wilson:
You seek our opinion on the simultaneous service of a person on the city council of the
City of Forest Hill and as a member of the Forest Hill public library district board. 1 You tell us
that at the May 2016 election the same person was elected to the city council of the City of Forest
Hill ("City") as well as to the board of trustees of the Forest Hill public library district ("District").
See Request Letter at 1. You inform us that the District is "located within the territorial limits of
the [C]ity." Id. at 2.
Article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously
holding more than one "office of emolument." TEX. CONST. art. XVI, § 40(a). "An 'emolument'
is compensation paid to the officer and does not include reimbursement for actual expenses." Tex.
Att'y Gen. Op. No. KP-0023 (2015) at 1. Here, the City's charter provides that its council members
do not receive compensation. See FOREST HILL, TEX., CODE OF ORDINANCES, pt. 1, art. III,
§ 3.03 (2007) (Horne Rule Charter). Thus, a city council position is not one of emolument.
Accordingly, article XVI, section 40(a) does not bar one person holding the two offices about
which you ask. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
(recognizing that both positions must be civil offices of emolument for article XVI, section 40(a)
to be applicable); see also Tex. Att'y Gen. Op. No. KP-0032 (2015) at 1.
We next consider the common-law doctrine of incompatibility.' The doctrine has three
components: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen.
Op. No. KP-0032 (2015) at 2. The circumstances you describe implicate only the conflicting
loyalties component. See Request Letter at 2. In Thomas v. Abernathy County Line Independent
School District, a Texas court first determined two offices to be incompatible. 290 S.W. 152, 153
(Tex. Cornrn'n App. 1927, judgrn't adopted) (determining the offices of school trustee and city
alderman to be incompatible). In its decision, the court said that
1
See Letter from Honorable Sharen Wilson, Tarrant Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex.
Att'y Gen. at I (July 7, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Sharen Wilson - Page 2 (KP-0125)
there are in the city council or board of aldermen various directory
or supervisory powers exertable in respect to school property
located within the city or town and in respect to the duties of school
trustee performable within its limits--e.g., there might well arise a
conflict of discretion or duty in respect to health, quarantine,
sanitary, and fire prevention regulations. If the same person could
be a school trustee and a member of the city council or board of
aldermen at the same time, school policies, in many important
respects, would be subject to direction of the council or aldermen
instead of to that of the trustees.
Id. (citations omitted). Conflicting-loyalties incompatibility "prohibits an individual from
simultaneously holding two positions that would prevent him or her from exercising independent
and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004)
at 2. The crucial question in determining whether two offices are incompatible "is whether the
occupancy of both offices by the same person is detrimental to the public interest or whether the
performance of the duties of one interferes with the performance of those of the other." Pirtle,
887 S.W.2d at 930.
Each position considered in the conflicting-loyalties analysis must be an "officer." In this
context, an officer is one upon whom "any sovereign function of the government" is conferred "to
be exercised by him for the benefit of the public largely independent of the control of others."
A/dine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). This office previously
determined that a city council member is an officer. See Tex. Att'y Gen. Op. Nos. GA-0169 (2004)
at 3, JM-1266 ( 1990) at 2. And though this office has not yet considered the position of a library
district board trustee, we note the position is an elected one, which makes it an officer. TEX. Loe.
Gov'T CODE§ 326.043 (providing for the election oflibrary district trustees); see also Tex. Att'y
Gen. Op. No. JM-1266 (1990) at 2 ("Elected officials are clearly officers[.]"). In addition to
taxation authority, the powers entrusted to a library district board include the power to "borrow
money, purchase, construct, acquire, own, ... or improve any land" necessary for the district. TEX.
Loe. Gov'T CODE§ 326.061(a); see also id. §§ 326.091-.096 (governing the imposition of a sales
and use tax by a library district). Such powers are sovereign powers exercised for the public by
the board and its members, and because the board members are elected they are "largely
independent of the control of others." A/dine, 280 S.W.2d at 583. Thus, a library district board
trustee is an officer for purposes of the conflicting-loyalties incompatibility analysis.
In instances where the geographic boundaries of the two entities at issue overlap, "the
potential for conflicting loyalties increases because the duties of the two offices are more likely to
conflict." Tex. Att'y Gen. Op. No. KP-0023 (2015) at 2. As this office has recognized on
numerous occasions, when "two districts with overlapping geographical jurisdictions each have
the power of taxation, ... the potential for conflict is insurmountable." Id.; see also Tex. Att'y
Gen. Op. Nos. GA-0786 (2010) at 3--4, GA-0032 (2003) at 5, JM-1266 (1990) at 4. Such is the
case because "[w]here the object of each district is to maximize its own revenues, a single
individual would have great difficulty in exercising his duties to two separate and competing
masters." Tex. Att'y Gen. Op. No. GA-0032 (2003) at 5.
The Honorable Sharen Wilson - Page 3 (KP-0125)
In their overlapping territory, the City and the District each have authority to tax. 2 See
TEX. CONST. art. XI,§ 5(a) (authorizing home-rules cities to levy taxes); see also TEX. TAX CODE
§§ 302.00l(c) (authorizing a home-rule municipality to levy special or general property taxes),
321.lOl(a) (authorizing a municipality to impose sales and use tax); TEX. Loe. Gov'T CODE
§§ 326.091-.096 (providing for imposition of sales and use tax by library district). The object of
each entity's taxation authority is to maximize its revenues such that one individual would have
difficulty in fully exercising his or her duties to separate and competing entities. See Tex. Att'y
Gen. Op. No. GA-0307 (2005) at 4-5. As this office observed in Opinion GA-0307, because each
entity has authority to call an election to impose, increase, or abolish a tax, each entity has
substantial authority with regard to the levy of taxes. Id at 4; see also TEX. Loe. Gov'T CODE
§ 326.094(a) (authorizing a library district to "call an election to increase, decrease, or abolish the
local sales and use tax rate"); TEX. TAX CODE§ 321.lOl(a) (authorizing a municipality to conduct
an election to reduce, increase, or abolish the sale and use tax rate). Moreover, here the City and
the District both have authority to impose a sales and use tax. See TEX. TAX CODE§ 321.lOl(a)
(authorizing a municipality to impose sales and use tax); TEX. Loe. Gov'T CODE §§ 326.091-
.096 (providing for imposition of sales and use tax by library district). Because a sales and use
tax is limited to a two percent tax rate between the entities imposing a sales and use tax, there is
an increased likelihood of conflict between the two entities as they each seek to maximize their
percentage within the limit. See TEX. TAX CODE § 321.101 (f) (imposing two percent limit on all
sales and use taxes imposed by the municipality and other taxing authorities); TEX. Loe. Gov'T
CODE § 326.096 (same). Thus, competition between the City and the District to impose a
maximum sales and use tax within the limit is an ever-present issue confronted by this individual
that would make it difficult for the individual to fully exercise his or her duty to either entity.
Given the taxation authority in the two entities with overlapping territories, the offices of city
council member and library district trustee are incompatible, and one individual may not
simultaneously serve in both.
Because of this conclusion, we next consider your question about the status of the holder
of the dual offices. See Request Letter at 1, 3. You tell us that the person was first sworn in as a
city council member and then sworn in as a trustee of the library board. See id at 1. The Texas
Supreme Court has determined that qualification for and acceptance of a second incompatible
office operates as an automatic resignation from the first. See Pruitt v. Glen Rose Indep. Sch. Dist.,
84 S.W.2d 1004, 1006 (Tex. 1935); Thomas, 290 S.W.2d at 153. "[A]n officer who vacates his or
her office by accepting and qualifying for a second incompatible office does not hold over under
article XVI, section 17 of the Texas Constitution." Tex. Att'y Gen. Op. No. GA-0015 (2003) at 6
(citing Pruitt, 84 S.W.2d at 1007, and TEX. CONST. art. XVI, § 17). Under the facts you provide,
in qualifying for the second office of library district trustee, the individual effectively resigned
from the office of city council.
2 To the extent the District's sales and use taxation authority differs from the City's ad valorem property
taxation authority, this office previously dismissed such a distinction in this context. See Tex. Att'y Gen. Op. No.
GA-0307 (2005) at 4-5 (concluding that an individual's simultaneous service to two entities with differing types of
taxing authority was incompatible).
The Honorable Sharen Wilson - Page 4 (KP-0125)
SUMMARY
Because the City of Forest Hill and the Forest Hill Library
District have taxation authority in overlapping territories, one
individual may not simultaneously serve as a city council member
and as a library district trustee. In qualifying for the second office
of library district trustee, the individual effectively resigned from
the office of city council.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee