Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
JIM MATTOX February 23, 1984
Attorney General
Supreme Court Building Mr. Kenneth Il.Ashworth Opinion No. JM-129
P. 0. BOX 12548 Colmrdssioner
Austin, TX. 78711. 2549 Coordinating Board He: Whether a member of a
512/475-2501
Telex 9101874.1387
Texas College and University System board of trustees of a com-
Telecopier 5121475.0266 P. 0. Box 12788, Capitol Station munity college w aerve
Austin, Texas 78711 simultaneously as a county
commissioner
714 Jackson, Suite 700
Dallas, TX. 75202.4508
2141742.8944
Dear Mr. Ashworth:
On behalf of the Dallas County Community College District, you
4024 Alberta Ave., Suite 160 ask:
El Paso, TX. 79905-2793
915/533-3424
Whether a member of a Board of Trustees governed
P by section 130.082 of the Education Code,
All Texas. Suite 700 V.T.C.S., may serve simultaneously as a county
Houslon, TX. 77002.3111 commissioner?
7131223-5886
Section 130.082 of the Education Code relates to the election of
806 Broadway, Suite 312
trustees for all junior college districts other than those managed by
Lubbock. TX. 79401-3479 the governing board of an independent school district. A trustee of
806/747-5238 the Dallas County Community College District wishes to serve as a
county commissioner in Dallas County. The boundaries of the junior
college district are coterminous with the county boundaries. See
43M) N. Tenth. Suite S
McAllen, TX. 78501~1095 Attorney General Opinion C-533 (1965). A representative of the junior
5121682.4547 college has informed us that each of the district's seven campuses is
located within the boundaries of an incorporated city, and that the
junior college does not now own any property in the unincorporated
200 Main Plaza, Suite 400
part of Dallas County.
San Antonio, TX. 78205.2797
5121225-4191
On examination of the statutes governing the district, we have
determined that the common law doctrine of incompatibility prohibits
An Equal Opportunltyl the dual service inquired about. Hence, we need not address any
Affirmative Action Employer
issues that might be raised by any constitutional provision on dual
office holding. -See Tex. Const. art. II, 91, and art. XVI, 540.
The common law doctrine of incompatibility prevents one person
from accepting two offices where one office might thereby impose its
policies on the other or subject it to control in some other way. See
Thomas V. Abernathy County Line Independent School District, 290 ST
152 (Tex. Comm. App. 1927); State V. Martin, 51 S.W.2d 815 (Tex. Civ.
p. 547
Mr. Kenneth H. Ashworth - Page 2 (JM-129)
APP. - San Antonio 1932, no writ). Compare Letter Advisory No. 114
(1975) with Letter Advisory No. 149 (1977).
For example, section 130.121 of the Education Code provides that
the governing board of a junior college district may have its taxable
property "assessed and/or its taxes collected, in whole or in part, by
the tax assessors and/or tax collectors, respectively, of any county,
city, taxing district, or other governmental subdivision in which all
or any part of the junior college district is located." See Attorney
General Opinion JM-35 (1983). Under this provision theTrustees of
Dallas County Community College may require the tax assessor-collector
of Dallas County to assess and collect its taxes, even if this service
interferes with his county responsibilities, for example, by slowing
the assessment and collection of county taxes. In addition, the
commissioners court controls the budget of the tax assessor-
collector's office under section 3912k. V.T.C.S.
The county and the junior college district could have conflicting
interests with respect to tax collection and one person serving as
junior college trustee and county commissioner could not serve the
best interests of both. We conclude that section 130.121 creates an
incompatibility between the two offices.
Moreover, the county commissioners way, with the consent of the
city, improve city streets which form an integral part of the county
road system or a connecting link with it. See Attorney General
Opinion H-1018 (1977). Section 2.04 of the Education Code provides as
follows:
No public road shall be opened across land owned
and used by any school district or other
educational institution covered by this code
without the consent of the regents, directors, or
trustees of that institution and approval of the
governor, unless the land is subject to sale under
the general laws of Texas. The roads already
opened across such land may be closed by the
authorities in charge whenever they deem it
necessary to protect the interest of the
institution and on repayment with eight percent
interest of the amount actually paid out as
appears on the records of the cormnissionerscourt,
by the situs county for the land's condemnation.
We have been informed that no city or county roads cross the junior
college campuses, with one minor exception. However, we do not know
whether any campus is situated on the route of a possible extension of
a county road or connecting link between county roads. If one is so
situated, the duties of the county commissioners might come into
p. 548
Mr. Kenneth H. Ashworth - Page 3 (JM-129)
conflict with those of the junior college trustees. A trustee who
also served as county commissioner might let county policy influence
his vote on consent under section 2.04 of the Education Code, thus
subordinating the junior college district's interests to the county's.
Furthermore, since the boundaries of the district and the county
are coterminous, the potential for other conflict always exists. For
all of these reasons, one person may not serve as Trustee of Dallas
County Community College and at the same time serve as Dallas County
Commissioner.
SUMMARY
The common law doctrine of incompatibility
prevents a trustee of Dallas County Colmaunity
College from simultaneously serving as Dallas
County Commissioner.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 549