Untitled Texas Attorney General Opinion ( 1994 )

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