Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF 'TEXAS
August 23, 1989
Honorable Rene Guerra Opinion No. ``-1887
Criminal District Attorney
Hidalgo County Courthouse Re: Whether the common law doc-
Edinburg, Texas 78539 trine of incompatibility may be
overcome by a charter provision
of a home rule city which speci-
fically permits such dual office
holding (RQ-1675)
Dear Mr. Guerra:
you have requested our opinion as to whether a home
rule city may overcome the common law doctrine of incompat-
ibility by means of a provision in its city charter.
The charter of the City of Alamo, a home rule city,
provides in pertinent part in article 1.1, section 5:
[T]he Mayor, with the approval of at least
two (2) of the four (4) Commissioners, may
serve as City Manager at a salary that is set
and approved by at least two (2) of the four
(4) Commissioners; provided that if he/she is
serving as City Manager, he or she will not
receive compensation for services as Mayor.
Article IV, section 1, of the charter provides in pertinent
part:
The City Manager shall be responsible to the
Board of Commissioners for the efficient
administration of the affairs of the City of
Alamo and shall hold office at the pleasure
of the Board of Commissioners. The City
Manager may be removed from office by
majority vote of all the members of the Board
of Commissioners. The action of the Board of
Commissioners suspending or removing the City
Manager shall be final.
Thus, as you indicate, the charter specifically makes the
city manager accountable to the board of commissioners, of
which the mayor is a member. On the other hand, the charter
also specifically permits "the mayor, with the approval of
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Honorable Rene Guerra - Page 2 (JM-1087)
at least two of the four commissioners,VV to "serve as** city
manager.
Absent the language of the city charter provision, it
is abundantly clear that a single individual may not serve
simultaneously in two positions in which one is accountable
to the other. Letter Opinion 89-57 (1989); Letter Advisory
No. 114 (1975). This conclusion is based upon the long-
standing common law doctrine of incompatibility. &= Thomas
V.
2 ernat Co nt Dist., 290 S.W. 152
(Tex. Comm'n App. 1927, judgmt adopted). The question here
is whether a city charter provision may overcome this
common-law rule.
Under the home rule amendment to the Texas
Constitution, article XI, section 5, a home rule city has
all those powers which are not inconsistent with the
constitution or general laws of the state. &lDha
1, 411 S.W.2d 417 (Tex. Civ.
App.), cert., 389 U.S. 1005 (1967). A home rule city
need not look to the legislature for a particular grant of
power. Rather, it need concern itself only with limitations
imposed on its power. Lower Colorado River Auth. v. Citv of
San, 523 S.W.2d 641, (543 ITex. 1975). Furthermore.
any limitation thereon must appear
. with unmistakable
clarity. Id. at 645.
The only such qqlimitationfi'which might restrict the
city's authority in this instance is section 5.001 of the
Civil Practices & Remedies Code, which provides:
The rule of decision in this state
consists of those portions of the common law
of England that are not inconsistent with the
constitution or the laws of this state, the
constitution of this state, and the laws of
this state.
In our opinion, this provision is not really a
*'limitation." It does not indicate a legislative intent to
make common law incompatibility the absolute law in this
state, but only in the absence of other authority to the
contrary. In this instance, we believe that a city charter
provision which is not contrary to a svecific state law, or
which does not purport to act in a field which has been
fully occupied by the legislature, is itself sufficient to
overcome the common law.
In Dal1 as Rv . 8 Terminal Co. v. Bankston, 33 S.W.2d 500
(Tex. Civ. App. - Dallas 1930), rev'd on other srounds, 51
S.W.2d 304 (Tex. Comm'n App. 1932), holding approved,
several ordinances required that a streetcar operator, inter
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Honorable Rene Guerra - Page 3 (JM-1087)
gJ,.&& keep a "vigilant watch" and that he be prepared to
stop in the shortest time and space possible upon any
appearance of danger. The ordinances were somewhat broader
than the standard of care required by common law.
Nevertheless, the court, citing Citv of Dallas v. Gila, 199
S.W. 1144 (Tex. Civ. APP. - Dallas 1917, writ ref'd), held
that if an ordinance is passed under constitutional and
statutory authority, it repeals the common law in all
respects in which inconsistencies exist. DB, suvra,
at 502; see M, 564 S.W.2d 471 (Tex. Civ.
APP. - Dallas 1978, no writ). But Gv.f
enusa
Houston, 10 S.W.2d 772 (Tex. Civ. App. - Galveston 1928, no
writ) (city ordinance imposing liability on owner of a
rental automobile void because it contravenes common law,
questioned by Supreme Court in citv of COrDUS
Christi v. Texas Driverless C o., 190 S.W.2d 484 (Tex.
1945)).
Likewise, in the situation you pose, the Alamo city
charter has specifically provided for the contingency that a
single individual may serve simultaneously as both mayor and
city manager. The conditions necessary for the holding of
both positions are detailed in the charter, as well as
provisions for the mayor's removal as city manager. In this
instance, we believe that the charter is sufficient to over-
come the common law doctrine of incompatibility. As a
result, there is no impediment to the mayor of Alamo holding
the position of city manager under the circumstances
provided in the charter.
SUMMARY
Under the terms of the charter of the City
of Alamo, the mayor may, in certain circum-
stances, simultaneously serve as city
manager. The common law doctrine of incom- _
patibility does not prevail over the charter
provision. I
JIM MATTOX -
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LQU MCCREARY
Executive Assistant Attorney General
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Honorable Rene Guerra - Page 4 (JM-1087)
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 5691