Untitled Texas Attorney General Opinion ( 1988 )

TEE ATTORNEY GENERAL
OF TEXAS
July 28, 1988
.Jxx MA-X
,,,“,‘GRNEY GENERAI.
Honorable Kenneth Ii. Ashworth Opinion No. JM-934
Commissioner
Texas Higher Education Re: Dual membership on Board
Coordinating Board of Trustees of Houston Inde-
P. 0. Box 12788 pendent School District and
Austin, Texas 78711 Houston Community College
District (RQ-1421)
Dear Mr. Ashworth:
You ask three questions which arise out of the proposal
of the Board of Education for the Houston Independent School
District to divest itself of the management, control, and
operation of the Houston Community College System pursuant
to section 130.016 of the Texas Education Code. The Houston
Community College System was established by the Houston
Independent School District * accordance with the
predecessor provision of section1y30.011 of the Education
Code. & Attorney General Opinions M-876, M-851 (1971).
Section 130.011 provides that an "independent school dis-
trict junior college" may be established by an independent
school district which meets certain requirements. Educ.
Code 5 130.011(a). The board of trustees of the independent
school district serves as board of trustees of the community
college district, but exercises different powers and duties
for each entity. Attorney General Opinions MW-504 (1982);
M-876 (1971). The community college district and the
independent school district that created it are separate
legal entities. Attorney General Opinion MB-504 (1982).
The Houston Independent School District Board of
Education now intends to create a separate board of trustees
for the community college system in accordance with section
130.016 of the Education Code, which provides in part:
(a) A junior college established by an
independent school district . . . may be
governed, administered, and controlled by and
under the direction of a senarate board of
trustees, which may be placed in authority by
either of the following procedures:
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Honorable Kenneth H. Ashworth - Page 2 (JM-934)
-.
(1) the board of trustees of an inde-
pendent school district or citv school
district which has the manaaement,
control. and overation of a iunior colleae
may divest itself of the management,
control, and operation of that junior
college so maintained and operated by the
school board by appointing for the junior
college district a separate board of
trustees of nine members: or
(2) [petition and election procedure
on question of whether school board of
trustees shall be divested of authority
as governing board of junior college dis-
trict.] (Emphasis added.)
Educ. Code 5 130.016.
Your first two questions are as follows:
1. May a trustee who currently serves as
a member of both the HCCS Board and the HISD .-.,
Board retain his or her position on the HCCS
Board of Trustees if he or she resigns from
the HISD Board of Education?
2. If the answer to the first question is
yes, must the trustee resign from the HISD
Board of Education, or can the member elect
to serve on the new HCCS Board while also
serving as a trustee of the HISD?
We will deal with these two questions together.
At present, the Board of Education for the Houston
Independent school District governs the Houston Community
College System, applying Education Code provisions relevant
to community colleges when it convenes to make decisions for
the community college system. It is not, however, two boards
composed of the same persons, even though, as the attorneys
for the community college system and the independent
school district inform us, it conducts the business of
the independent school district and the business of the
community college system at different meetings and
identifies itself as both "the Board of Education for the
Houston Independent School District" and "the Board of
Trustees for the Houston Community College System." -.
p. 4690
Honorable Kenneth H. Ashworth - Page 3 (JM-934)
The underlined language of section 130.016 of the
Education code shows that only the board of the independent
school district exists prior to the appointment of a
separate board for the junior college district. The
language of section 130.017 of the Education Code, which
provides for a petition and election to divest the school
board of its authority over ofa ~u~.``~o;egg; also demon-
strates'that only the board independent
school district exists as a legal entity before the appoint-
ment of a board for the junior college district. Section
130.017(a) of the Education Code provides as follows:
(a) On a petition signed by 10 percent of
the qualified electors of the independent
school district or city school district, the
board of trustees within 30 days shall call
an election after the petition has been duly
presented on the proposition of whether the
school board of trustees shall be divested of
;its authoritv as aovernina board of such
iunior colleae district. (Emphasis added.)
Educ. Code 5 130.017(a).
Thus, under the Education Code, the trustees of the
Houston Independent School District are not members of a
board of trustees for a community college and cannot
therefore Vetain" membership on the separate board of
trustees for the community college system. Members of the
Houston Independent School District Board of Trustees may
become members of the newly created separate board of
trustees for the junior college district only by appointment
to it pursuant to section 130.016 or 130.017 of the Educa-
tion Code.
The appointment of the new board is, however, subject
to the common law doctrine of incompatibility. It is well
established that all officers who have the appointing power
are disqualified for appointment to offices to which they
may appoint. mlinaer v. Cla& 0 S.W.2d 666 (Tex. 1928)
(commissioners court could not &mploy county judge as its
attorney). This rule has been applied to bar the board of
trustees of a school district from appointing themselves as
the board of equalization for the district. St. Louis
Southwestern Railwav Co. of Texas v. Naples I .S.D., 30
S.W.2d 703 (TeX. Civ. App. - Texarkana 1930, no writ). The
court stated as follows:
,F-.
P. 4691
Honorable Kenneth H. Ashworth - Page 4 (JM-934)
It is contrary to the policy of the law for
an officer to use his official appointing
power to place himself in office, so that,
even in the absence of statutory inhibition,
all officers who have the appointing power
are disqualified for appointment to the
offices to which they may appoint.
t. Louis Southwest rn Railwav Co. f Texas v. N aules
F.S.D.. sunra, at 7:6 (quoting 46 C.J" Officers 5 43, at
940, see 67 C.J.S. Officers § 23 at 269). A trustee who
serves on the board of the Houston Independent School
District may not be appointed to the newly created board of
trustees for the Houston Community College System. If a
trustee resigns from the board of trustees for the Houston
Independent School District and is replaced by another
person so that he no longer continues in the office as a
holdover officer pursuant to article XVI, section 17 of the
Texas Constitution, the common law doctrine of incompati-
bility will no longer bar his appointment to the board of
trustees for the Houston Community College System. Attorney
General Opinion O-410 (1939) (member of board of directors
of Texas Tech could not be appointed president of college
by board when successor had not been appointed). See also
Attorney General Opinion C-452 (1965).~
Your third question is as follows:
3. May a current member of the HISD and
HCCS Boards serve the remainder of his or her
current term on both boards after a separa-
tion of the two boards has occurred?
In view of our answer to your first two questions, we
need not answer your third question.
SUMMARY
The board of trustees of the Houston
Independent School District, which 'esta-
blished the Houston Community College System
pursuant to the predecessor of section
130.011 of the Education Code, governs the
community college system but does not
constitute a separate board of trustees for
the community college system. When the
board of trustees of the independent school
district acts to divest itself of the
management, control, and operation of the
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Honorable Kenneth H. Ashworth - Page 5 (JM-934)
community college district by appointing a
separate board of trustees for it pursuant
to section 130.016 of the Education Code, it
may not appoint any of its own members to
the separate board of trustees of the
community college district. The common law
doctrine of incompatibility prevents
officer from using his appointive power :'d
appoint himself to an office. If a member
of the independent school district resigns
his office and is replaced so that he is no
longer a holdover officer under article XVI,
section 17, of the Texas Constitution, the
common law doctrine of incompatibility will
not prevent his appointment as trustee of
the separate board of trustees for the
community college district.
JIM MATTOX
-. Attorney General of Texas
MARYKHLIRR
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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