Untitled Texas Attorney General Opinion ( 2000 )

OFPKE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
May 22,200O
The Honorable Jeff Wentworth Opinion No. JC-0225
Chair, Nominations Committee
Texas State Senate Re: Whether a member of a city council may
P.O. Box 12068, lE.9 appoint himself to a city board under a particular
Austin, Texas 7871 I-2068 ordinance (RQ-0152-JC)
Dear Senator Wentworth:
You ask whether the common-law doctrine of incompatibility bars the City Council of San
Antonio from appointing a member of the city council to the Board of the Greater Kelly
Development Authority, if the ordinance establishing the board provides that an elected official may
serve on the board. San Antonio, a home-rule city, lacks authority to exempt the city council’s
appointments to the governing body of another political subdivision, such as the Greater Kelly
Development Authority, from the common-law doctrine of incompatibility.
In 1995, the City of San Antonio created the Greater Kelly Development Corporation
pursuant to the Development Corporation Act of 1979, TEX. REV. CIV. STAT. ANN. art. 5190.6
(Vernon 1987 & Supp. 2000) to manage the transition ofKelly Air Force Base from a governmental
facility to private ownership. Brief from Honorable Frank J. Garza, City Attorney, City of San
Antonio, Tex., to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General
(Jan.7, 2000) (on file with Opinion Committee) [hereinafter “Garza brief’]. The legislature
subsequently adopted chapter 378 of the Local Government Code,’ which validated defense base
development corporations established to promote projects regarding a military base closure or
realignment under the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. 5 2687) and
authorized a municipality to establish a defense base development authority as a successor in interest
to adefense basedevelopment corporation. Act ofMay 30, 1999,76thLeg., R.S., ch. 1221, $5 1-2,
1999 Tex. Gen. Laws 4250,4250-53. An authority created by a city under chapter 378 is “a special
district and political subdivision of this state, with a boundary coterminous with the base property”
described in the resolution creating the authority. TEX. LOC. GOV’T CODE ANN. 5 378.002(a)
(Vernon Supp. 2000). Its purpose is to “accept title to or operate under a lease from the United
‘Another law adopted by the Seventy-sixth Legislature was also codified as chapter 378 of the Local
Government Code. See Act ofMay 17,1999,76th Leg., R.S., ch. 305, § I,1999 Tex. Gen. Laws 1209 (neighborhood
empowerment zones). References to Local Government Code sections 378.001,378.002 and 378.003 in this opinion
are to provisions as added by Act of May 30, 1999,76th Leg., RX, ch. 1221, 5 1, 1999 Tex. Gen. Laws 4250,425l.
The Honorable Jeff Wentworth - Page 2 (JC-0225)
States or any other person all or a part of the base property and areas around the base property” and
to “engage in the economic development” of that property. Id. § 378.003.
In November 1999, the city council adopted an ordinance pursuant to Local Government
Code chapter 378 to dissolve the corporation and establish the Greater Kelly Development Authority
(the“GKDA”)asits successorininterest. Garzabrief;seeTEx.Loc.G``‘l’C``~A``. $4 378.001,
,002 (Vernon Supp. 2000). In the ordinance the city council also exercised its authority under
section 378.007 of the Local Government Code to appoint an 1 l-member managing board for the
GKDA, including among other appointees a member of the city council who had nominated himself
for the board. Letter from Honorable Jeff Wentworth, to Honorable John Comyn, Texas Attorney
General (Nov. 24, 1999) (on file with Opinion Committee) [hereinafter “Request Letter”]; Garza
brief, supra, at 1. Under section 378.007 of the Local Government Code, the governing body of the
municipality that establishes the authority “shall appoint each board member to a term not exceeding
two years.” TEX. LOC. Gov’TCODEANN. 5 378.007(b) (Vernon Supp. 2000). Board members serve
without compensation but may be reimbursed for expenses. Id. 5 378.007(e). The ordinance
creating the GKDA and appointing its board of directors included the following provision:
The Board of Directors of the Greater Kelly Development Authority
shall consist of eleven members, including business and community
representatives in the area of Kelly Air Force Base. The mayor and
each member of the City Council shall nominate one (1) member of
the Board. An individual who is otherwise eligible to serve on the
Board is not ineligible because the individual is an elected of$cial.
The Board of Directors shall have the powers, authority and duties
provided under the Act.
San Antonio, Tex., Ordinance 90,826 (Nov. 4, 1999) (emphasis added).
You ask whether the common-law doctrine of incompatibility prevents the city council
member from nominating himself to the board and being appointed to it by the city council when
the ordinance establishing the board provides that an elected official may serve on the board. The
city attorney reads the term “an elected official” as including members of the city council. Garza
brief, supva, at 2. We will adopt his interpretation for purposes of this opinion.
The common-law doctrine of incompatibility bars one person from holding two offices if
their duties conflict, Thomas Y. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex.
Comm’n App. 1927, judgm’t adopted), or an office and employment if the office has a supervisory
role over the employment, Tex. Att’y Gen. LA-75-114. It also prevents an individual with
appointing power fromappointing himselfto anotherofficeorposition. Ehlingerv. Clark, 8 S.W.2d
666,674 (Tex. 1928). Under the latter aspect of commbn-law rule of incompatibility, a city council
could not appoint one of its members to another office. See Tex. Att’y Gen. Op. No. JM-1069
(1989) at 4; Tex. Att’y Gen. LO-94-020, at 1.
The Honorable Jeff Wentworth - Page 3 (JC-0225)
Because incompatibility is a common-law doctrine, it may be overcome by statute. See
Houston Pipe Line Co. v. Beasley, 49 S.W.2d 950,952 (Tex. Civ. App.-Galveston 1932, no writ)
(legislature may alter or repeal rule of common law within constitutional bounds); Tex. Att’y Gen.
LO’s-96-064, at 2; 95-052 (1995), at 6. In addition, Attorney General Opinion JM-1087 determined
that ahome-rule city could exercise its legislative authority to except city officers from the common-
law doctrine of incompatibility under limited circumstances. Tex. Att’y Gen. Op. No. JM-1087
(1989). A home-rule city derives its legislative authority directly from the Texas Constitution. TEX.
CONST. art. XI, 5 5; Lower Colorado RiverAuth. v. CityofSan Marcos, 523 S.W.2d 641,643 (Tex.
1975); Forwood v. City of Taylor, 214 S.W.2d 282, 286 (Tex. 1948). It has full powers of self-
government and authority to adopt charter provisions and ordinances not inconsistent with the
constitution or general law, and it looks to legislation for limits on its power, rather than
authorization. Dallas Merchant’s & Concessionaire’s Ass ‘n v. City ofDallas, 852 S.W.2d 489,490
(Tex. 1993); CityofRichardson v. ResponsibleDogOwnersof Tex., 794 S.W.2d 17,18 (Tex. 1990);
Forwood, 214 S.W.2d at 286; Tex. Att’y Gen. Op. Nos. JC-145 (1999) at 2; JC-142 (1999) at 4. The
grant ofpowers to a home-rule city by the Local Government Code does not prevent, by implication
or otherwise, the city from exercising the authority incident to local self-government. TEX. Lot.
GOV’T CODE ANN. 5 51.072 (Vernon 1999). Any ordinance or resolution adopted by a home-
rule city must also be consistent with the city charter. Lower Colorado River Auth., 523 S.W.2d at
643-44; Tex. Att’y Gen. Op. No. H-936 (1977) at 1.
At issue in Attorney General Opinion JM-1087 (1989) was a home-rule city charter provision
that authorized the mayor to serve as city manager, a dual service ordinarily prohibited by the
common-law doctrine of incompatibility. See Tex. Att’y Gen. LA-75-l 14 (positions of school
district trustee and school teacher are incompatible because of trustees’ supervisory role as to
teachers). Attorney General Opinion JM-1087 found that no constitutional provision or general law
limited the city’s authority to adopt the charter provision in question. It determined that “a city
charter provision which is not contrary to a specific state law, or which does not purport to act in a
field which has been fully occupied by the legislature, is itself sufficient to overcome the common
law.” Tex. Att’y Gen. Op. No. JM-1087 (1989) at 2 (emphasis in original); see also Tex. Att’y Gen.
Op. No. 94-020 (1994) at 5.
The two positions at issue in Attorney General Opinion JM-1087 were entirely within the
structure of the city government and thus within the areaofthe home-rule city’s legislative authority.
The opinion stands for the proposition that, “with regard to two city offices, a home-rule
municipality may overcome the common-law doctrine of incompatibility by means of a provision
in its city charter.” Tex. Att’y Gen. LO-94-020, at 5. A home-rule city charter provision “does not,
however, overcome the common-law principle when one of the offices is a regional office.” Id. Nor
does it overcome the common-law doctrine of incompatibility where the home-rule city council
appoints officers to another political subdivision, such as the GKDA. It is for the legislature to
decide whether to exempt a city’s appointment to the board of another governmental unit from the
common-law doctrine of incompatibility. See generally Tex. Att’y Gen. Op. No. DM-428 (I 996)
(legislature is the appropriate body to determine whether holding ofmultiple municipal judgeships
is “of benefit to the State” within article XIV, section 40 of the Texas Constitution). Accordingly,
The Honorable Jeff Wentworth - Page 4 (JC-0225)
the City of San Antonio lacks authority to adopt an ordinance authorizing the city council to appoint
its members to the Board of the Greater Kelly Development Authority.
SUMMARY
The common-law doctrine of incompatibility prevents an
officer with appointing power from appointing himself to another
office or position. While an ordinance of a home-rule city may
exempt city offices from this rule, it may not exempt a city council
appointment to the governing body of another political subdivision
from the common-law doctrine of incompatibility. San Antonio, a
home-rule city, lacks authority to adopt an ordinance providing that
a member of the city council may be appointed by the city council to
serve on the Board of the Greater Kelly Development Authority.
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Susan L Garrison
Assistant Attorney General - Opinion Committee