Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF '.l;'EXAS
December 21, 2015
The Honorable Val J. Varley Opinion No. KP-0054
Red River District and County Attorney
400 North Walnut Street Re: Whether the common-law doctrine of
Clarksville, Texas 75426-4012 ~ incompatibility prohibits simultaneous service
as a county sheriff and a member of the board
of trustees of a school district (RQ-0036-KP)
Dear Mr. Varley:
On behalf of the Clarksville Independent School District (the "District"), you ask whether
an individual may serve as a member of the District's Board of Trustees while simultaneously
serving as the Red River County Sheriff (the "Sheriff'). 1 You state that amember of the District's
board has been appointed to fill the vacant office of the Sheriff. See Request Letter at 1. You
direct our attention to a previous attorney general opinion, GA-0328, which concluded that a
sheriff may not serve as a school district trustee, and seek our opinion due to differing
circumstances. See id. at 3; see also Tex. Att'y Gen. Op. No. GA-0328 (2005). You tell us that
while the geographic territories of the District and Red River County (the "County") overlap, no
close working relationship exists between the Sheriff and the District as it did in GA-0328. See
Request Letter at 1-3. You suggest that this difference is significant enough to warrant a
conclusion that a person may simultaneously hold the two positions. See id. at 3-4.
The common-law·doctrine of incompatibility comprises three aspects: self-appointment,
self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. KP-0023 (2015) at 1.
Self-appointment incompatibility derives from the Texas Supreme Court, which said that "[i]t 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 ... declared that all officers who have the
appointing power are disqualified for appointment to the offices to which they may appoint." .
Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Self-employment incompatibility prohibits a
person from holding both an office and an employment that the office supervises. See Tex. Att'y
Gen. Op. No. GA-0536 (2007) at 4 (stating that "the key aspect of self-employment incompatibility
is supervision"). Accepting your assertion that neither office at issue here appoints nor employs
the other, we examine your question under the conflicting-loyalties incompatibility analysis. See
Tex. Att'y Gen. Op. No. KP-0023 (2015) at 1-2. ~
1
See Request Letter from Honorable Val J. Varley, Red River Dist. & Cty. Att'y, to Honorable Ken Paxton,
Tex. Att'y Gen. at 1(July7, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Val J. Varley - Page 2 (KP-.0054)
A Texas court first described conflicting-loyalties incompatibility in the case of Thomas v.
Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927,
judgm't adopted), in which the court held the offices of school trustee and city alderman to be
incompatible. Id at 153. The court said that
there are in the city council or board of aldermen various directory
or supervisory powers exertable in respect to school property
located within the city or town and in respect to the duties of school
trustee performable within its limits-e.g., there might well arise a
conflict of discretion or duty in respect to health, quarantine,
sani~ary, and fire prevention regulations. If the same person could
be a school trustee and a member of the city council or board of
aldermen at the same time, school policies, in many important
respects, would be subject to direction of the council or aldermen
instead of to that of the trustees.
Id (citations omitted). In determining whether two offices are incompatible, "the crucial question
is whether the occupancy of both offices by the same person is detrimental to the public interest
or whether the performance of the duties of one interferes with the performance of those of the
other." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994). Conflicting-
loyalties incompatibility applies only when the two positions are both officers. See Tex. Att'y
Gen. Op. No. GA-0393 (2006) at 3; see also Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,
583 (Tex. 1955) (stating that a person is an "officer" if "any sovereign function of the government
is conferred upon the individual to be exercised by him for the benefit of the public largely
independent of the control of others"). This office has previously determined that the positions of
school district trustee and sheriff are public offices under Aldine: See Tex. Att'y Gen. Op. Nos.
GA-1083 (2014) at 2 (school trustee), GA-0393 (2006) at 4 n.5 (sheriff). ·
In instances in which the respective jurisdictions of the two offices overlap, there is an
increased risk that an officer's loyalty and duties to one entity will interfere with his or her loyalty
and duties to the other. See generally Tex. Att'y Gen. Op. Nos. JC-0339 (2001) at 3, JM-203
(1984) at 10. Thus, when overlapping jurisdictions have authority to contract with each other or
each have taxing authority, this office has usually concluded that the dual service is prohibited.
See Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 4-5 (overlapping contracting authority), GA-
0032 (2003) at 5 (overlapping taxing authority). A school district has general contracting
authority. See TEX. EDUC. CODE § 11.1511 (c)(4) (authorizing a school district to enter into
contracts as authorized by law). Contracts for the county are generally entered into by the
commissioners court while a sheriff has only limited contracting authority. See Anderson v. Wood,
152 S.W.2d 1084, 1085 (Tex. 1941) (recognizing that the commissioners court "alone has
authority to make contracts binding on the county" and that the sheriff has only that contracting
authority expressly conferred by statute). With the Sheriffs limited contracting authority, little
potential exists for a contract between the District and the Sheriff. See TEX. Gov'T CODE
§ 511.012(b) (authorizing agreements between sheriffs regarding the transferring and receiving of
prisoners); TEX. Loe. Gov'T CODE§ 351.0415 (authorizing a sheriff to contract with a person to
operate a jail commissary). And though a school district may impose a tax, a sheriff may not. See
TEX. EDUC. CODE § 11.1511 (b)(8) (authorizing school district board to adopt tax rate); TEX. TAX
The Honorable Val J. Varley - Page 3 (KP-0054)
CODE § 1.04(12) (identifying school districts and counties as taxing units). Thus, there is no
concern here about overlapping taxation authority. Accordingly, the fact that the Sheriff serves
territory that overlaps with the District's jurisdiction is not determinative, and we consider the
duties of the two positions.
You tell us there is "little interaction" between the offices of a district board trustee and the
Sheriff. Request Letter at 3. You state that the Sheriff "does not operate on the [District] campus
in any official capacity." Id You also state that any report involving criminal 'activity is dealt
with by the school resource officer, who is provided by the Clarksville Police Department. See id
at 1, 3. You inform us that if the school resource officer determines that charges should be filed,
they are referred not to the Sheriff but to the Clarksville Police Department, which serves as the
primary point of contact for law enforcement matters. See id 3-4. Because the Clarksville Police
Department and its school resource officer perform the law enforcement duties with respect to the
District, the potential for conflicting interests that may arise from an individual serving as a District
school trustee and the Sheriff is remote. Accordingly, under the facts you describe, a court would
likely conclude that the doctrine of conflicting-loyalties incompatibility does not prohibit the dual
service you describe.
The Honorable Val J. Varley - Page 4 (KP-0054)
SUMMARY
A court would likely conclude that, under the facts you
describe, the common-law doctrine of incompatibility does not
prohibit an individual's simultaneous service as the Red River
County Sheriff and as a board trustee of the Clarksville Independent
School District.
Very truly yours, .
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee