Untitled Texas Attorney General Opinion ( 1987 )


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  •                       February20, 1987
    HonorableSteve W. Simons       OpinionNo. ``-634
    DistrictAttorney
    303 City-CountyBuilding        Re: Whether a member of a school
    El Paso, Texas 79901           board of trusteesmay serve as a city
    alderman or councilmanfor an incor-
    porated town situated within the
    boundariesof the schooldistrict
    Dear Mr. Simmons:
    You ask for our opinionon the followingquestion:
    Whether a member of a board of trustees [of a
    school district] governed by section 23.01 gt
    5.    of the Education Code, may serve simul-
    taneouslyas a city aldermanor councilmanof an
    incorporatedtown within the boundaries of the
    school district?
    One impedimentto dual office holding is the coeuaonlaw rule of
    incompatibility; this doctrineprohibitsone person from holding two
    offices if the duties are in conflict or if one is subordinateto
    the other. See Thomas V. Abernathy County Line IndependentSchool
    District. 290s.W. 152 (Tex. Comm'n App. 1927); State V. Martin, 
    51 S.W.2d 815
    (Ten. Civ. App. - San Antonio 1932, no writ); Attorney
    General Opinion Nos. JM-133, JM-129 (1984);Letter Advisory Nos. 114
    (1975);86 (1974). This officehas assertedthat
    in most instances,whether or not two positions
    are legally incompatibleIs a fact questionto be
    determinedinitiallyby those having supervision
    In one or both of the positionsheld by the person
    in questionand, ultimately,by the courts.
    Letter AdvisoryNo. 62 (1973). Althoughthere have been few appellate
    decisionsidentifyingwhich officesare incompatible,the questionyou
    pose has been addressed in a judicial decision with facts closely
    matchingthose In your opinionrequest.
    In Thomas V. AbernathyCounty IndependentSchoolDistrict,=,
    the Incorporatedtown was within the school district territory. Two
    p. 2870
    HonorableSteve W. Simmons- Page 2    (JM-634)
    school trustees were subsequentlyelected to the office of town
    alderman. Since the boundariesof the school district and the city
    overlapped.the competing interests of the two jurisdictionsraised
    the potential for conflict. The court w*s especially sensitive to
    this potentialfor conflictwhen it concluded:
    In our opinion the offices of school trustee
    and aldermen are Incompatible; for under our
    system there are in the city council or board of
    aldermen various directory or supervisorypowers
    exertable In respect to school property located
    within the city or town and in respect to the
    duties of school trustee performablewithin its
    Mmits - *,      there might well arise a conflict
    of discretion or duty In respect to health.
    quarantine,sanitary.and fire preventionregula-
    tions. See articles1015. 1067, 1071.R. S. 1925.
    If the same person could be a school trusteeand a
    member of the city councilor board of aldermenat
    the same time, school policies,in many important
    respects, would be subject to discretionof the
    council or aldermen instead of to that of the
    trustees.
    
    Id. at 153.
    In reachingIts conclusionconcerninglncompatlbllty,  the
    Thomas court established for the offices in question a safeguard
    against conflicting duties attenuating faithful public service.
    Grounded in this concern. the incompatibilitydoctrine "protectsthe
    integrity of state institutionsby promoting impartial service by
    public officials." Attorney General Opinion m-203 (1984) at 3. A
    city council or board of aldermen thus has powers and duties which
    conflict with the legal role of school trustees. Accordingly,the
    court held that the public officesof trusteeof an independentschool
    districtand aldermanor councilmanwere incompatiblepositions. &;
    see also Letter AdvisoryNo. 149 (1977).
    Therefore,In our opinion,the lncompatibllltydoctrineprohibits
    a member of the Board of Trustees of the Socorro IndependentSchool
    Districtfrom simultaneously servingas aldermanor councilmanfor the
    town of Socorro,which is situatedwithin the boundariesof the school
    district.
    Althoughyour request does not indicatewhich of the two offices
    In question was first occupied. we nonetheless advise you of the
    common law principleof vacation:
    If a person holding an office Is elected or
    appointedto another (wherethe two officescannot
    be legallyheld by the same person) and he accepts
    p. 2871
    L.
    EonorableSteve W. Siamons- Page 3     (JK-634)
    and qualifies as to the second, such acceptance
    and qualiflcatlonoperate, Ipso facto. as a re-
    sign&ion of the former office.
    Pruitt v. Glen Rose IndependentSchoolDistrictNo. 1, 
    84 S.W.2d 1004
    ,
    -
    1006, opiniou adopted (Tax.                         also Thomas v.
    AbernathyCounty Line IndependentSchool 
    District, 290 S.W. at 153
    .
    In other words, given two incompatibleoffices, the occupant of one
    office who assumes another vi11 be held to have vacated or resigned
    the first. See Attorney General Opinion m-133 (1984); Letter
    Advisory No. 64(1973). As a result. the individualinvolved here
    would eithervacate the office of aldermenor councilmanupon assuming
    the office of trustee,or vacate the office of trusteeupon assuming
    the office of aldermanor councilman.
    In your brief, you Inquirewhether article XVI. section 40, of
    the Texas Constitutionapplieshere. Since the common iaw doctrineof
    incompatibilityIs dlsposltiveof the issue raised In your opinion
    request,we need not reach the constitutional
    question.
    SUMMARY
    The common law rule of incompatibility
    prevents
    one person from serving as trustee of the Soccoro
    IndependentSchool District and at the same time
    serve as alderman or councilman of the town of
    Socorro.
    J I-M MZTTOX
    AttorneyGeneralof Texas
    JACX HIGHTOWER
    First AssistantAttorneyGeneral
    UARYKELLER
    F,xecutive
    AssistantAttorneyGeneral
    RICK GILPIN
    Chairman,OpinionCommittee
    Preparedby Jeff Millstone
    AssistantAttorney General
    p. 2872
    

Document Info

Docket Number: JM-634

Judges: Jim Mattox

Filed Date: 7/2/1987

Precedential Status: Precedential

Modified Date: 2/18/2017