Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
March 7,2002
The Honorable Bill Carter Opinion No. JC-0474
Chair, House Corm&tee on Urban Affairs
Texas House of Representatives Re: Whether a member of the City Council of the
P.O. Box 2910 City of Watauga may appoint himself to the Board
Austin, Texas 78768-2910 of Directors of the Watauga Crime Control and
Prevention District (RQ-0452-JC)
Dear Representative Carter:
You have requested our opinion as to whether a member of the City Council of the City of
Watauga may appoint himself to the Board of Directors of the Watauga Crime Control and
Prevention District. For the reasons set forth below, we conclude that he may not do so.
Crime control and prevention districts are authorized by chapter 363 of the Local
Government Code. A crime control and prevention district “may be proposed,” inter alia, in a
municipality “that is partially or wholly located in a county with a population of more than 5,000.”
TEX. Lot. GOV’TCODEANN. 0 363.05 1(a) (Vernon Supp. 2002). The City of Watauga is located in
Tarrant County, which has a population of more than 5,000. See U. S. CENSUSBUREAU,U.S. DEP’T
OF COMMERCE,2000 CENSUSOFPOPULATION,available at http://www.census.gov/ (Tarrant County
population is 1,446,2 19). We have been informed that the Watauga Crime Control and Prevention
District (the “WCCD”) was created by the City Council of the City of Watauga in 1996.’ Section
363.1015 provides:
(a) The governing body of a municipality or county by resolution
may appoint the governing body’s membership as the board of
directors of the district.
(b) In a district for which the board is not appointed under
Subsection (a), the governing body of the municipality or county may
create a board by having each member of the governing body appoint
one director to the board, subject to confirmation by the governing
body.
‘Letter from Mark G. Daniel, City Attorney, City of Watauga, to Honorable John Comyn, Texas Attorney
General (Oct. 25,200l) (on file with Opinion Committee) [hereinafter Daniel BriefJ.
The Honorable Bill Carter - Page 2 (JC-0474)
(c) A director appointed under Subsection (b) serves:
(1) at the pleasure of the governing body of the municipality
or county; and
(2) for a term concurrent with the term of the appointing
member.
TEX. Lot. GOV’T CODE ANN. 8 363.1015 (Vernon Supp. 2002).
A letter from the City Attorney for the City of Watauga indicates that, “[t]he Watauga City
Council explored the idea of invoking the provision of L.G.C. 9 363.1015(a) which allows the
governing body to serve as the Board for the WCCD but instead opted under L.G.C. 8 363.1015(b)
to allow members of the City Council to appoint individuals to serve.” Daniel Brief, supra note 1,
at 1. Furthermore, since 1996, the WCCD board “has consisted of members of the City Council who
have appointed themselves to the board. Two City Councilmen were defeated in the general election
this past May and declined to relinquish their positions on the Board following a request to do so by
members of the incumbent City Council.” Id. Recently, an incumbent city council member “sought
to appoint himself (as was done for more than five (5) years) which resulted in a complaint that such
action is violative of the ‘doctrine of incompatibility.“’ Id.
Subsection (a) of section 363.10 15 per-i-nits the governing body of a municipality to appoint
its membership as a group “as the board of directors of the district.” The City Council of Watauga,
however, opted to avail itself of subsection (b). You indicate that a resolution of the City Council
dated July 23’2001 “adopted the procedures under Section 363.1015(b) of appointing members to
the Crime Control and Prevention District.“2 Subsection (b) does not specifically permit a member
of a local governing body to appoint himself to the board of directors of a crime control and
prevention district. In the absence of such specific authorization, common-law incompatibility
prevails.
In Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)’ the Texas Supreme Court declared:
It is because of the obvious incompatibility of being both a member
of a body making the appointment and an appointee of that body that
the courts have with great unanimity throughout the country declared
that all officers who have the appointing power are disqualified for
appointment to the offices to which they may appoint.
Id. at 674. Many subsequent attorney general opinions have applied this principle. See, e.g., Tex.
Att’y Gen. Op. Nos. JM-934 (1988) (members of school district board of trustees may not appoint
*Letterfrom Honorable Bill Carter, Chair, House Committee on Urban Affairs, to Honorable John Comyn,
Texas Attorney General (Oct. 12,200l) (on file with Opinion Committee).
The Honorable Bill Carter - Page 3 (JC-0474)
themselves to governing board of a community college district); JM-3 86 (1985) (city council may
not appoint one of its members to the city’s police reserve); Tex. Att’y Gen. LO-93-070 (governing
body of entity authorized to make appointments to board of directors of Edwards Aquifer Authority
may not appoint one of its own members to that position); LO-92-008 (board of trustees of
community college district may not appoint one of its own members to the position of interim
chancellor). More recently, we said that the City of San Antonio lacked the authority to adopt an
ordinance providing that a member of the city council could be appointed to the Board of Directors
of the Greater Kelly Development Authority. Tex. Att’y Gen. Op. No. JC-0225 (2000).
We believe it is clear that the principle of EhZinger v. Clark controls the situation you pose
and that, as a result, a member of the Watauga City Council that appoints directors to the Watauga
Crime Control and Prevention District may not appoint himself as a director of that district.
The Honorable Bill Carter - Page 4 (JC-0474)
SUMMARY
Unless the City Council of the City of Watauga appoints itself
as a body to the Watauga Crime Control and Prevention District,
members of the City Council are prohibited by the common-law
doctrine of incompatibility from appointing themselves as directors
of the Watauga Crime Control and Prevention District.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee