Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 18, 2008
The Honorable Jeff Wentworth Opinion No. GA-0597
Chair, Committee on Jurisprudence
Texas State Senate Re: Whether a member of the Village of
Post Office Box 12068 Wimberley City Council may serve simultaneously
Austin, Texas 78711 on the board of directors of the Wimberley Water
Supply Corporation (RQ-0613-GA)
Dear Senator Wentworth:
You ask whether a member of the Village of Wimberley City Council may serve
simultaneously on the board of directors of the Wimberley Water Supply Corporation. 1 You state
that, at present, "[0 ]ne member ofthe Village of Wimberley City Council holds a position as a First
Vice President of the Board of Directors of the Wimberley Water Supply Corporation; [and] the
Village of Wimberley Mayor holds the position as President of the Board of Directors of the
Wimberley Water Supply Corporation." Request Letter, supra note 1, at 2. Because your letter
suggests that both the mayor and the city council member are members ofthe city council, we refer
to them throughout this opinion as council members. See ide at 2.
Your questions may implicate the constitutional prohibition of dual office holding and the
common-law doctrine of incompatibility. See ide at 1-2. Article XVI, section 40 of the Texas
Constitution does not allow an individual to hold more than one civil office of emolument at the
same time. See TEX. CONST. art. XVI, § 40. The common-law doctrine of incompatibility prohibits
an individual from holding two public offices that perform inconsistent or conflicting duties. See
Thomas V. Abernathy County Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927,
judgm't adopted) (concluding that the public offices of school trustee and city alderman are
incompatible because the city's board of aldermen have "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"); Turner v. Trinity Indep. Sch. Dist. Bd. of Trs. , 700
S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ). The common-law doctrine of
incompatibility also prohibits an individual "from appointing himself to another public position, or
from holding both an office and an employment subordinate to the office." Tex. Att'y Gen. Ope No.
GA-0488 (2006) at 2; see also Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) (stating that
lSee Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to
Honorable Greg Abbott, Attorney General ofTexas (Aug. 14, 2007) (on file with the Opinion Committee, also available
at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Jeff Wentworth - Page 2 (GA-0597)
.officers who have the appointing power are "disqualified for appointment to the offices to which they
may appoint").
The constitutional prohibition of dual office holding and the common-law doctrine of
incompatibility pertain to the holding of two public offices. See Tex. Att'y Gen. Ope No. DM-303
(1994) at 1 (stating that a county auditor's. position on a nonprofit housing corporation-a private
venture-does not implicate either article XVI, section 40 ofthe Texas Constitution or the common-
law doctrine of incompatibility); see also Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ..
App.-Beaumont 1966, writ refd n.r.e.) (equating the meaning of "civil officer" in article XVI,
section 40 with "public officer"); Tex. Att'y Gen. Ope No. GA-0307 (2005) at 3 (stating that the
common-law doctrine of incompatibility prevents one person from holding "two public offices" in
certain circumstances). Thus, neither article XVI, section 40 nor the common-law doctrine of
incompatibility applies if the water-supply-corporation positions at issue here are private offices.
The Wimberley Water Supply Corporation is a private entity. See N Alamo Water Supply
Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 898-900 (Tex. 1991) (describing how a
water supply corporation operates and concluding that it is not a public charity); cf TEX. CONST. art.
III, § 49-d-7(a) (permitting the Texas Water Development Board to provide bond proceeds to
"various political subdivisions and bodies politic and corporate of the state and to nonprofit water
supply corporations"); Tex. Att'yGen. Ope No. JM-852 (1988) at4 (distinguishing between business
entities and public institutions established by legislative action and governed by public officers
exercising delegated legislative authority); Tex. Att'y Gen. LO-95-014, at 3-4 (defining "private
corporation" and distinguishing it from a state agency). It was established as a nonprofit water
supply corporation underWater Code chapter 67. 2 See Wimberley Water Supply Corporation
By-Laws art. VIII (attached to Akers Letter supra note 2, at 7); cf Tex. Att'y Gen. Ope No. JC-0484
(2002) at 6 ("A nonprofit corporation is a private entity and is, therefore, distinguishable from a
public entity."). And a position on the board of a nonprofit corporation is a private office. See Tex.
Att'y Gen. Ope No. DM-194 (1992) at 3. Because members of the Wimberley Water Supply
Corporation board of directors do not hold public offices,3 neither the constitutional prohibition
against dual office holding nor the common-law doctrine of incompatibility precludes them from
simultaneously holding positions on the Village of Wimberley City Council.
2See Letter from Honorable Sally Caldwell, City of Woodcreek City Council, to Opinion Committee, Office
of the Attorney General, at 4 (Sept. 15, 2007) [hereinafter Caldwell Brief]; Letter from Patty L. Akers, Village of
Wimberley City Attorney, to Honorable Greg Abbott, Attorney General ofTexas, at 1 (Sept. 14,2007) [hereinafter Akers
. Letter]; Brief of Wimberley Water Supply Corporation, at 1, attached to Letter from Michael D. Stevens, Stevens &
Malone, L.L.P., to Honorable Greg Abbott, Attorney General ofTexas (Sept. 5,2007); see also TEX. WATER CODE ANN.
§ 67.003(a) (Vernon 2004) (authorizing three Texas citizens to form a water supply corporation).
3In support ofa statement that the directors of the Wimberley Water Supply Corporation hold public offices,
a briefwe have received cites Attorney General Letter Opinion 92-68, which states that a director ofthe EI Paso County
Water Authority holds a public office and therefore cannot simultaneously serve on the Horizon City Town Council.
See Caldwell Brief, supra note 2, at 1-2; Tex. Att'y Gen. LO-92-68, at 1-2. Unlike the Wimberley Water Supply
Corporation, which was established in accordance with Water Code chapter 67, the EI Paso County Water Authority was
created by a special act that specifically declared it a governmental agency. See Act ofAug. 8, 1961, 57th Leg., 1st C.S.,
ch. 32, § 1, 1961 Tex. Gen. Laws 136, 136. Consequently, Letter Opinion 92-68 is inapposite here.
The Honorable Jeff Wentworth - Page 3 (GA-0597)
Although the constitutional prohibition against dual office holding and the common-law
doctrine of incompatibility do not apply, Local Government Code section 171.009 limits the
authority of a "local public official" to serve on the board of a private nonprofit corporation. TEX.
Lac. GOV'T CODE ANN. § 171.009 (Vernon 1999). A local public official for purposes of section
171.009 includes a member of a municipal governing body, "whether elected, appointed, paid, or
unpaid." Id. § 171.001(1). Under section 171.009, it is "lawful for a local public official to serve
as a member ofthe board of directors ofprivate, nonprofit corporations when such officials receive
no compensation or other remuneration from the nonprofit corporation or other nonprofit entity."
Id. § 171.009. Thus, a member of the Village of Wimberley City Council may serve on the board
of directors of the Wimberley Water Supply Corporation only if the city council member receives
"no compensation or other remuneration" from the water supply corporation. See Tex. Att'y Gen.
Ope Nos. GA-0084 (2003) at 7; DM-194 (1992) at 3-4. Conversely, a member ofthe water-supply-
corporation board of directors who receives "compensation or other remuneration" from the water
supply corporation may not serve on the city council.
We have not been informed as to whether the water-supply-corporation board members
receive compensation or other remuneration for their service on the board. Ifthey do, they may not
serve simultaneously on the Village of Wimberley City Council.
The Honorable Jeff Wentworth - Page 4 (GA-0597)
SUMMARY
Under Local Government Code section 171.009, the mayor of
the Village of Wimberley and a member ofthe Village of Wimberley
City Council may serve simultaneously on the Wimberley Water
Supply Corporation's board of directors only if they receive no
compensation or other remuneration from the water supply
corporation.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee