Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 1.2005
The Honorable Allan B. Ritter Opinion No. GA-0307
Chair, Committee on Economic Development
Texas House of Representatives Re: Whether an individual may simultaneously
Post Office Box 2910 serve as a trustee of the New Caney Independent
Austin, Texas 78768-2910 School District and director of the East
Montgomery County Improvement District
(RQ-0269-GA)
Dear Representative Ritter:
You ask whether an individual may simultaneously serve as a trustee of the New Caney
Independent School District and director of the East Montgomery County Improvement District.’
The East Montgomery County Improvement District (the “EMCID”) was created in 1997 by
special act of the legislature, as “a governmental agency, body politic and corporate, and political
subdivision of the state.“2 The boundaries of the EMCID “are coextensive with the boundaries of
the New Caney Independent School District and the Splendora Independent School District as those
boundaries existed on January 1, 1997, but the district does not include any portion of the City of
Houston as it existed on January 1, 1997.” EMCID Act, supra note 2, 5 4, at 4988. Initial directors
of the EMCID were appointed by the commissioners court of Montgomery County. See id. 3 7, at
4989. A subsequent election confirmed the district, and later, initial permanent directors were
elected. See id. $5 8-9, at 4989.
The EMCID has “the rights, powers, privileges, and other functions of a municipal
management district under Subchapter E, chapter 325, Local Government Code,” as well as “the
powers given to an industrial development corporation organized under the Development
Corporation Act of 1979” (article 5190.6 of the Revised Civil Statutes). Id. 5 15, at 4990. The
EMCID is specifically authorized to undertake improvement projects and services that may include:
‘See Letter from Honorable Allan B. fitter, Chair, Committee on Economic Development, Texas House of
Representatives, to Honorable Greg Abbott, Texas Attorney General (Aug. 27,2004) (on file with Opinion Committee,
also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
‘Act of May 28, 1997,75th Leg., RX, ch. 1316, g l(a), 1997 Tex. Cien. Laws 4987 [hereinafter EMCID Act].
The Honorable Allan B. Bitter - Page 2 (GA-0307)
(1) the construction, acquisition, lease, rental, installment
purchase, improvement, rehabilitation, repair, relocation, and
operation of:
(A) landscaping; lighting, banners, or signs;
streets or sidewalks, pedestrian or bicycle paths and
trails; pedestrian walkways, skywalks, crosswalks, or
tunnels; highway right-of-way or transit corridor
beautification and improvements;
(B) drainage or storm water detention
improvements; solid waste, water, sewer, or power
facilities and services, including electrical, gas, steam,
and chilled water facilities and services;
(C) parks, lakes, gardens, recreational
facilities, open space, scenic areas, and related
exhibits and preserves; fountains, plazas, or pedestrian
malls; public art or sculpture and related exhibits and
facilities; educational or cultural exhibits and
facilities; exhibits, displays, attractions, or facilities
for special events, holidays, or seasonal or cultural
celebrations;
(D) off-street parking facilities, bus terminals,
heliports, mass-transit, or roadway-borne or water-
borne transportation systems; and
(E) other public improvements, facilities, or
services similar to the improvements, facilities, or
services described by Paragraphs (A) through (D) of
this subdivision;
(2) the cost of removal, razing, demolition, or clearing of
land or improvements in connection with providing an improvement
project;
(3) the acquisition of real or personal property or an interest
in the property that is made in connection with an authorized
improvement project; and
(4) the provision of special or supplemental services to
improve or promote the area in the district or to protect the public
health and safety in the district, including advertising, promotion,
The Honorable Allan B. Ritter - Page 3 (GA-0307)
tourism, health and sanitation, public safety, security, tire protection
or emergency medical services, business recruitment, development,
elimination of traffic congestion, and recreational, educational, or
cultural improvements, enhancements or services.
Id. 5 17, at 4991.
For revenue purposes, the EMClD is authorized to “impose a sales and use tax for the benefit
of the district if authorized by a majority of the qualified voters of the district voting at an election
called for that purpose.” Id. § 21(a), at 4991. The district’s board of directors is empowered to “call
an election to adopt, change the rate of, or abolish a sales and use tax.” Id. 5 22(a), at 4992.
However, the board “by order may abolish the local sales and use tax rate without an election.” Zd.
§ 26, at 4992.
You ask whether an individual may simultaneously serve on the board of directors of the
EMCID and the New Caney Independent School District. See Request Letter, supra note 1, at 1.
The trustees of an independent school district
have the exclusive power and duty to govern and oversee the
management of the public schools of the district. All powers and
duties not specifically delegated by statute to the [Texas Education
Agency] or to the State Board of Education are reserved for the
trustees, and the agencymaynot substitute its judgment for the lawful
exercise of those powers and duties by the trustees.
TEX.EDUC. CODE ANN. 5 11.151(b) (Vernon Supp. 2004-05). Section 11.152 oftheEducationCode
authorizes the “trustees of an independent school district [to] levy and collect [ad valorem property]
taxes and issue bonds.” Id. 5 11.152 (Vernon 1996).
We note initially that article XVI, section 40 of the Texas Constitution, which prohibits a
person from simultaneously holding more than one “office of emolument,” is not applicable to the
situation you pose. See TEX. CONST. art. XVI, 5 40. Although both positions at issue here are
“offices,” a school district trustee serves without compensation and thus does not occupy an “office
of emolument.” See TEX. EDUC. CODE ANN. 5 11.061(d) (Vernon 1996) (“The trustees [of an
independent school district] serve without compensation.“).
Your question does, however, implicate the common-law doctrine of incompatibility. That
doctrine recognizes and prohibits three kinds of conflicts that may arise from holding two public
offices: self-appointment, self-employment, andconflictingloyalties. Seegenerally Tex. Att’y Gen.
Op. Nos. GA-0032 (2003), GA-0015 (2003), JC-0199 (2000), JM-1266 (1990). The first is derived
from the Texas Supreme Court’s decision in Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928), in which
the court stated that
The Honorable Allan B. Bitter - Page 4 (GA-0307)
[i]t is because of the obvious incompatibility ofbeing 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, 8 S.W.2d at 674. “Self-employment” incompatibility is a corollary to the “self-
appointment” doctrine. It was first applied in Attorney General Opinion LA-1 14, which concluded
that a public school teacher was ineligible to serve as a member of the board of trustees of the district
in which she was employed as a teacher. See Tex. Att’y Gen. LA-l 14 (1975) at 8. Neither of these
two prongs of the incompatibility doctrine is applicable here.
The instant situation implicates the third kind of incompatibility-conflicting
loyalties-which was first recognized in Texas in Thomas v. Abernathy County Zndependent School
District, 290 S.W. 152 (Tex. Comm’n App. 1927, judgm’t adopted). In that case, the court held that
[t]he offices of school trustee and alderman are incompatible; for
under our system 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 limitseg., there might well
arise a conflict of discretion or duty in respect to health, quarantine,
sanitary, and tire 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.
Thomas, 290 S.W. at 153 (citations omitted). The court concluded that “[tlhe result of this
incompatibility is that [the officers at issue] vacated the offices of school trustees when they
qualified as aldermen.” Id.
As we have noted, the school district is entirely encompassed within the boundaries of the
EMCID. Where the geographical boundaries of two governmental bodies overlap, there is always
the potential for conflict, particularly when both entities collect taxes. See Tex. Att’y Gen. Op. No.
GA-0015 (2003) at 2. You suggest, however, that this doctrine is not applicable in the present
instance because the two districts impose different kinds oftax: the school district levies ad valorem
taxes on real property, while the EMCID levies a sales and use tax which may be imposed only after
a vote of the electorate. Although this distinction may have some superficial appeal, its limitations
become obvious upon closer examination. In the first place, the EMCID directors must first calZ an
election in order to impose a sales and use tax. See EMCID Act, supra note 2, 5 22(a), at 4992.
More significantly, the EMCID board may unilaterally abolish the sales and use tax without the
necessity of calling an election. See id. 6 26, at 4992. Thus, the EMClD directors retain substantial
authority with regard to the levy of taxes. As we said in Opinion GA-0032, quoting Opinion
The Honorable Allan B. Bitter - Page 5 (GA-0307)
JC-0557, “‘[wlhere 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’yGen. Op. Nos. GA-0032 (2003) at 5; JC-0557 (2002) at 5. Given theEMCID board’s authority
to call a sales tax election and to abolish the sales tax unilaterally, we conclude that the members of
both boards retain sufficient authority over taxation to render incompatible the simultaneous holding
of positions on each board by one individual.
We conclude that under the conflicting loyalties aspect of the common-law doctrine of
incompatibility, an individual may not simultaneously serve as trustee of the New Caney
Independent School District and director of the East Montgomery County Improvement District.
The Honorable Allan B. Ritter - Page 6 (GA-0307)
SUMMARY
Under the conflicting loyalties aspect of the common-law
doctrine of incompatibility, an individual may not simultaneously
serve as trustee of the New Caney Independent School District and
director of the East Montgomery County Improvement District.
Yours very truly,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee