Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 9, 2015
The Honorable Rene M. Pena Opinion No. KP-0023
81st Judicial District Attorney
1327 Third Street Re: Whether a member of a board of trustees
Floresville, Texas 78114 of an independent school district may also
serve as a trustee of a county hospital board
with overlapping jurisdiction (RQ-1234-GA)
Dear Mr. Pena:
You ask whether a trustee of an independent school district may also serve as a trustee on a
county hospital district board where the two governmental entities overlap injurisdiction. 1 You tell
us that the La Vernia Independent School District, on whose behalf you seek an opinion, is located
primarily in Wilson County and overlaps in geographic territory with the Wilson County Memorial
Hospital District. Request Letter at 1.
With certain exceptions not relevant here, the Texas Constitution, article XVI, section 40,
prohibits a person from simultaneously holding more than one "office of emolument." TEX.
CONST. art. XVI,§ 40. "An 'emolument' is compensation paid to the officer and does not include
reimbursement for actual expenses." Tex. Att'y Gen. Op. No. GA-0214 (2004) at 2. Both offices
about which you ask are ones in which a person serves without compensation. See TEX. EDUC:
CODE ANN. § 11.061(d) (West 2012) (providing that trustee of an independent school district
serves without compensation); TEX. SPEC. DIST. CODE ANN. § 1115.057 (West 2014) (governing
the Wilson County Memorial Hospital District and providing that a trustee serves without
compensation). Thus, neither office is one of emolument subject to the constraint in article XVI,
section 40. ·
Absent a constitutional prohibition, we consider the three aspects of the common-law
doctrine of incompatibility: self-appointment, self-employment, and conflicting loyalties. Tex.
Att'y Gen. Op. No. GA-0328 (2005) at 1. Self-appointment incompatibility is derived 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
with great unanimity throughout the country declared that all officers who have the appointing
1
See Letter from the Honorable Rene M. Pefta, 8 lst Jud. Dist. Att'y, to Office of the Tex. Att'y Gen. at 1
(Dec. 18, 2014), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Rene M. Pena - Page 2 (KP-0023)
power are disqualified for appointment to the offices to which they may appoint." Ehlinger v.
Clark, 8 S.W.2d 666, 674 (Tex. 1928). The self-employment aspect 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). Because neither of the offices about which you ask appoints or employs the other,
we examine your question under the conflicting-loyalties incompatibility analysis. See Tex. Att'y
Gen. Op. No. GA-0328 (2005) at 1.
The doctrine of conflicting-loyalties incompatibility was first announced by a Texas court
in the case of Thomas v. Abernathy County Line Independent School District, in which the court
held the offices of school trustee and city alderman to be incompatible. Thomas v. Abernathy Cnty.
Line lndep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927,judgm't adopted). 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,
sanitary, 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). ·
Where the geographic boundaries of the two entities that are served by a single individual
overlap, the potential for conflicting loyalties increases because the duties of the two offices are
more likely to conflict. See Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 2, GA-0348 (2005) at 3,
GA-0015 (2003) at 2. In particular, this office has consistently concluded that where "two districts
with overlapping geographical jurisdictions each have the power of taxation, ... the potential for
conflict is insurmountable." Tex. Att'y Gen. Op. No. GA-0032 (2003) at 5; see also Tex. Att'y
Gen. Op. Nos. GA-0786 (2010) at 3-4, JM-1266 (1990) at 4. "Where the object of each district is
to maximize its own revenues, a single individual would have great difficulty in exercising his
duties to two separate and competing masters." Tex. Att'y· Gen. Op. No. GA-0032 (2003) at 5.
A board of trustees of an independent school district, such as the La Vernia Independent
School District, is authorized to levy and collect ad valorem taxes. See TEX. Eouc. CODE ANN.
§ 11.152 (West 2012); see also id. §§ 11.151 l(c)(l)-(2) (authorizing levy of ad valorem taxes for
principal and interest payments on issued bonds and for the maintenance and operation of the
district), 45.001(a)(2) (authorizing the governing board of an independent school district to levy
The Honorable Rene M. Pena - Page 3 (KP-0023)
and collect ad valorem taxes). Likewise, the Wilson County Memorial Hospital District is
authorized to impose ad valorem taxes on property in the district. See TEX. SPEC. DIST. CODE ANN.
§ l l 15.251(a) (West 2014) (governing Wilson County Memorial Hospital District). Because each
of the entities about which you ask has taxing authority in territory that overlaps with the other,
simultaneous service on the governing body of both entities is prohibited by conflicting-loyalties
incompatibility. Thus, a person may not serve as a member of the board of trustees of the La Vernia
Independent School District while simultaneously serving as a member of the board of the Wilson
County Memorial Hospital District.
The Honorable Rene M. Pefia - Page 4 (KP-0023)
SUMMARY
A person may not serve as a member of the board of trustees
of the La Vernia Independent School District while simultaneously
serving as a member of the board of the Wilson County Memorial
Hospital 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