Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
November 29, 2016
The Honorable Rodney W. Anderson Opinion No. KP-0119
Brazos County Attorney
Brazos County Courthouse Re: The effect of section 130.0827 of the
300 East 26th Street, Suite 1300 Education Code on the simultaneous service of an
Bryan, Texas 77803-5359 individual as a board trustee of Blinn College and
a Brazos County commissioner (RQ-0108-KP)
Dear Mr. Anderson:
You ask about the effect of section 130.0827 of the Education Code on the simultaneous
service of an individual as a board trustee of Blinn College and a Brazos County commissioner. 1
In particular, you request an opinion about the common-law "doctrine of incompatibility and the
constitutional provision of dual office holding as it pertains to a County Commissioner elect and
the Blinn College Board of Trustees." Request Letter at 1. You inform us that Blinn College has
four district campuses, and its service area includes Brazos County, Washington County, and
several other counties. Id. Although the largest campus is in Brazos County, previously all seven
of the members on the 'Blinn College Board of Trustees were from Washington County, where
Blinn College exercises taxing authority. Id.
Section 130.0827 of the Education Code, passed in 2015 by the Eighty-fourth Legislature,
requires the appointment of additional members to the Blinn College Board of Trustees. TEx:
EDUC. CODE§ 130.0827(a). 2 In addition to the trustees who are elected or appointed pursuant to
other provisions, "the commissioners court of each county in which a branch campus of the district
with a student enrollment greater than 10,000 is located shall appoint two members to serve on the
district's board of trustees." Id. These. additional members serve a two-year term and may be
appointed to serve successive terms. Id. § 130.0827(b). They generally may participate in the
district board's decision-making, except that the members appointed under section 130.0827 may
not participate in decision-making "related to the imposition of a tax or the distribution of revenue
raised from a tax." Id. § 130.0827(c)(l). You state that Brazos County recently appointed two
trustees under this section, one of whom has become a candidate for Brazos County commissioner,
precinct 3, and is.unopposed in the upcoming general election. Request Letter at 1-2.
1See Letter from Honorable Rodney W. Anderson, Brazos Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at 1 (May 27, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for~opinion-rqs ("Request Letter").
2Act of May 27, 2015, 84th Leg., R.S., ch. 869, § 1, 2015 Tex. Gen. Laws 2960, 2960-61.
The Honorable Rodney W. Anderson - Page 2 (KP-0119)
We first address the "constitutional provision of dual office holding as it pertains to a
County Commissioner elect and the Blinn College Board of Trustees." Id. at 1. Article XVI,
section 40 of the Texas Constitution prohibits an individual from simultaneously holding "more
than one civil office of emolument," but it expressly excludes county commissioners from the
prohibition. TEX. CONST. art. XVI,§ 40(a). Thus, a county commissioner may hold another civil
office without violating the constitutional prohibition against dual office holding. See id.; Gaal v.
Townsend, 14 S.W. 365, 366 (Tex. 1890).
Next, we address the common-law doctrine of incompatibility. Common-law
incompatibility has three aspects: self-appointment, self-employment, and conflicting loyalties
incompatibility. See Tex. Att'y Gen. Op. No. GA-0786 (2010) at 1. For determining the
compatibility of two offices, "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).
The first aspect of common-law incompatibility, self-appointment incompatibility, derives
from a Texas Supreme Court opinion, Ehlinger v. Clark, which stated 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 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.
Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Because the Brazos County commissioners
court possesses the authority to appoint the additional trustees, the self-appointment aspect may
render the offices of county commissioner and college district board of trustees incompatible in
certain circumstances. See TEX. EDUC. CODE§ 130.0827(b). Although the individual you identify
was not a member of the commissioners court when it appointed her to the board of trustees, the
commissioners court will have authority to appoint her to a successive term on the board. See id.;
Request Letter at 1-2.
The second aspect of the doctrine, self-employment incompatibility, "prohibits a person
from holding both an office and an employment that the office supervises." Tex. Att'y Gen. Op.
No. KP-0054 (2015) at 1. Assuming that the commissioners court does not have supervisory
authority over a district trustee after appointment, self-employment incompatibility does not
appear to be an issue.
The third aspect of the doctrine, conflicting-loyalties incompatibility, "prohibits an
individual from simultaneously holding two positions that would prevent him ... from exercising
independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-
0169 (2004) at 2; see also Thomas v. Abernathy Cty. Line lndep. Sch. Dist., 290 S.W. 152, 153
(Tex. Comm'n App. 1927) (holding that positions of school trustee and municipal alderman are
incompatible because of the various regulatory powers the municipality could exert on school
The Honorable Rodney W. Anderson - Page 3 (KP-0119)
property). You ask specifically about conflicting loyalties incompatibility as it was discussed in
Attorney General Opinion JM-129. Request Letter at 2. In that opinion, this office concluded that
a trustee of the Dallas County Community College may not simultaneously serve as a Dallas
County commissioner, in part because the county and the college district would have conflicting
interests with respect to tax collection. Tex. Att'y Gen. Op. No. JM-129 (1984) at 2. You suggest
that because the trustees appointed by the Brazos County commissioners court may not participate
in taxation decisions, the conflicting-loyalties aspect of incompatibility may not prevent one
person from holding both offices simultaneously. Request Letter at 2-3; TEX. EDUC. CODE
§ 130.0827(c)(l).
While the appointed trustees' lack of authority to participate in tax and revenue decisions
ameliorates one potential basis of incompatibility, offices of two governing bodies are
incompatible whenever one entity may exert authority contrary to the interests the other. Thomas,
290 S.W. at 153. As the opinion in JM-129 observed, when the boundaries of a college district
and a county overlap, "the potential for other conflict always exists." Tex. Att'y Gen. Op. No.
JM-129 (1984) at 3. In light of the fact that a Blinn College branch campus is located in Brazos
County, the interests of Blinn College and the county are likely to conflict, in which case an
individual could not exercise disinterested judgment when serving on both governing boards. See,
e.g., id. at 2-3 (noting that the duties of the county commissioners court could conflict with duties
of the college district with respect to roads); Tex. Att'y Gen. Op. Nos. GA-0793 (2010) at 3
(determining that a school district is not entitled to install a fiber-optic cable on a county road right-
of-way but may be able to acquire an easement from the county); H-1019 (1977) at 1 (noting
county's authority to enter into an agreement with a school district under the Interlocal
Cooperation Act). Therefore, a court would likely conclude that the conflicting-loyalties aspect
of common-law incompatibility precludes an individual from simultaneously serving as a member
of the Blinn College Board of Trustees and as a Brazos County commissioner.
The Honorable Rodney W. Anderson - Page 4 (KP-0119)
SUMMARY
A court would likely conclude that the conflicting-loyalties
aspect of common-law incompatibility precludes an individual from
simultaneously serving as a member of the Blinn College Board of
Trustees and as a Brazos County commissioner.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee