Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
October 3, 2016
The Honorable Marco A. Montemayor Opinion No. KP-0114
Webb County Attorney
1110 Washington Street, Suite 301 Re: Whether a member of a board of trustees of
Laredo, Texas 78040 an independent school district may
simultaneously serve as a member of a city
planning and zoning commission (RQ-0104-KP)
Dear Mr. Montemayor:
You ask wliether a member of a board of trustees of an independent school district may
simultaneously serve as a member of a city planning and zoning commission. 1 You indicate that
the two positions at issue are with entities that share overlapping jurisdictional boundaries: the
United Independent School District ("District") and the City of Laredo ("City"). See Request
Letter at 1, 3.
We first consider the incompatibility of the two offices under the Texas Constitution.
Article XVI, section 40(a) provides that "[n]o person shall hold or exercise at the same time, more
than one civil office 2 of emolument." TEX. CONST. art. XVI, § 40(a) (footnote added). This
provision applies if both positions are offices that are entitled to an emolument, which is "a
pecuniary profit, gain, or advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim.
App. 1994) (orig. proceeding). A trustee serving on the school board of an independent school
district serves without compensation and is not in an office of emolument. TEX. EDUC. CODE
§ 1l.061(d). Accordingly, article XVI, section 40(a) does not prohibit the simultaneous service
about which you ask.
We next consider whether the common law renders the two pos1t10ns incompatible.
Common-law incompatibility comprises three components: self-appointment, self-employment,
and conflicting loyalties. See Tex. Att'y Gen. Op.No. KP-0032 (2015) at 2. You tell us that neither
office hires, employs, or supervises the other; thus, the relevant component is the one of
conflicting-loyalties. See Request Letter at 3.
1
See Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Apr. 1, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2
A "civil officer" under this provision is a public officer. See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex.
Civ. App.-Beaumont 1966, writ refd n.r.e.); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
(orig. proceeding) (recognizing that a "'civil office' ... pertains to exercise of the powers or authority of civil
government").
The Honorable Marco A. Montemayor - Page 2 (KP-0114)
A Texas court first described conflicting-loyalties incompatibility in the case of Thomas v.
Abernathy County Line Independent School District. 290 S.W. 152 (Tex. Comm'n App. 1927,
judgm't adopted). Considering the simultaneous service of a school trustee and a city council
member, the court said that
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 the direction of the council or aldermen
instead of to that of the trustees.
Id. at 153. In determining whether two offices are incompatible, the "crucial question 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. As with article XVI, section 40(a), the conflicting loyalties component of
common-law incompatibility applies only when both positions are offices. See Tex. Att'y Gen.
Op. Nos. GA-0214 (2004) at 4, GA-0127 (2003) at 3.
A public officer in this context 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 the position of a school board trustee is a public office under
A/dine. See Tex. Att'y Gen. Op. No. GA-1083 (2014) at 2.
In a prior opinion, this office considered the status of a member of the Missouri City
planning and zoning commission. See Tex. Att'y Gen. Op. No. JC-0339 (2001). This office noted
that the zoning function is a sovereign function delegated to municipalities by chapter 211 of the
Local Government Code. See id. at 2. Opinion JC-0339 recognized that a municipality delegates
this sovereign function when it appoints a planning and zoning commission. See id. at 2-3; see
also TEX. Loe. Gov'T CODE§ 21 l .007(a) ("To exercise the powers authorized by this subchapter,
the governing body of a home-rule municipality shall, and the governing body of a general-law
municipality may, appoint a zoning commission."). Opinion JC-0339 examined the powers and
duties of the Missouri City planning and zoning commission and determined that the Missouri City
charter delegated to the planning and zoning commission the final approval of subdivision plats.
See Tex. Att'y Gen. Op. No. JC-0339 (2001) at 3. In addition, Opinion JC-0339 observed that the
Missouri City charter gave the planning and zoning commission authority to grant a developer a
variance from a rule or regulation on subdivisions. See id. Based on the planning and zoning
members' exercise of zoning power "for the benefit of the public largely independent of the control
of others," A/dine, 280 S.W.2d at 583, this office determined that the Missouri City planning and
zoning members were public officers under A/dine. Tex. Att'y Gen. Op. No. JC-0339 (2001) at 3.
The Honorable Marco A. Montemayor - Page 3 (KP-0114)
Here, similar to the situation in Opinion JC-0339, the City's planning and zoning ordinance
provisions give the planning and zoning commission control over platting, replatting, or
subdividing land. See LAREDO, TEX., CODE OF ORDINANCES § 24.1.1.1.3(3). The City's planning
and zoning commission also has authority to make and amend a comprehensive plan for the
development of the City. See id § 24.1.1.1.3(1). A court would likely determine this authority is
sufficient to conclude that the members of the City's planning and zoning commission exercise a
"sovereign function of the government ... for the benefit of the public largely independent of the
control of others," and are thus public officers under Aldine. Aldine, 280 S.W.2d at 583.
We next consider whether members of the City's planning and zoning commission have
powers and duties that are incompatible with the powers and duties of a District trustee. Under
chapter 11 of the Education Code, a board of trustees of an independent school district is authorized
to acquire and hold real property. See TEX. EDUC. CODE § 11.151 (a). Chapter 11 also vests rights
and title to a district's school property in the trustees. See id § 11.151 (b ). It is foreseeable that a
school district may have a real property interest subject to action by the planning and zoning
commission such as a determination regarding the conformity of the location of new school
buildings to the City's comprehensive plan, the submission of a subdivision plat for approval that
contains as an element a new school building, or the need to rezone an area to accommodate a
school. See Request Letter at 3 (informing us that the "development of [school district property in
the City limits] will eventually involve the property being platted for development which must be
approved by the Planning and Zoning Commission"). Because of these and other potential real
property interactions between the District and the City planning and zoning commission, a member
serving as an officer of both entities would likely have divided loyalties such that the simultaneous
service is detrimental to the public interest. As you suggest, it is foreseeable that the person's
performance of duties of one of the offices may interfere with the person's performance of duties
of the other. See id Accordingly, a court would likely conclude that a person may not serve on
the City of Laredo's planning and zoning commission while simultaneously serving as a member
of the United Independent School District board of trustees. 3
3 0ther issues common in dual office holding scenarios that involve jurisdictions with overlapping territory
are whether the two entities each have taxing authority or have authority to contract with each other. See Tex. Att'y
Gen. Op. No. KP-0054 (2015) at 2. Given our conclusion on the conflict between the nature of the duties of the two
officer positions, we need not consider these issues.
The Honorable Marco A. Montemayor - Page 4 (KP-0114)
SUMMARY
A court would likely conclude that a member of a board of
trustees of the United Independent School District may not
simultaneously serve as a member of the City of Laredo's planning
and zoning commission.
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