Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEYGENERALOFTEXAS
GREG ABBOTT
June8,2005
The Honorable Dennis Bonnen Opinion No. GA-0328
Chair, Committee on Environmental Regulation
Texas House of Representatives Re: Whether a county sheriff may simultaneously
Post Office Box 2910 serve as a member of the board of trustees of an
Austin, Texas 7876829 10 independent school district located in that county
(RQ-0298-GA)
Dear Representative Bonnen:
You ask whether the Sheriff of Chambers County may simultaneously serve as a member of
the Board of Trustees of the East Chambers Independent School District located in that county.’
Article XVI, section 40 of the Texas Constitution provides that “[n]o person shall hold or
exercise at the same time, more than one civil office of emolument . . . .” TEX. CONST. art. XVI,
9 40. Although both the positions of sheriff and school trustee constitute “offices,” a member of the
board of trustees of an independent school district serves without compensation. See TEX. EDUC.
CODE ANN. 0 11.061(d) (Vernon 1996). Consequently, a school trustee does not hold an “office of
emolument,” and article XVI, section 40 does not affect our answer to your question.
We must also consider the common-law doctrine ofincompatibility, which has three aspects:
self-appointment, self-employment, and conflicting loyalties. See Tex. Att’y Gen. Op. No. GA-0032
(2003) at 4. The first two are not relevant here because both the office of sheriff and that of school
trustee are elected positions, and neither officeholder appoints or employs the other. It is the third
aspect of incompatibility - conflicting loyalties - that concerns us here. This doctrine was first
announced by a Texas court in the 1927 case of Thomas v. Abernathy County Line Independent
School District, 290 S.W. 152 (Tex. Comm’n App. 1927, judgm’t adopted), wherein the court held
the offices of school trustee and city alderman to be incompatible:
In our opinion the 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
‘See Letter from Honorable Dennis Bonnen, Chair, Committee on Environmental Regulation, Texas House of
Representatives, to Honorable Greg Abbott, Texas Attorney General (Dec. 7,2004) (on file with Opinion Committee,
also available at http:Nwww.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Dennis Bonnen - Page 2 (GA-0328)
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.
Abernathy County Line Indep. Sch. Dist., 290 S.W. at 153 (citation omitted).
This office has issued numerous opinions that find conflicting loyalties incompatibility in
situations where a single individual holds positions on the governing boards of two local entities
with overlapping jurisdiction. See, e.g., Tex. Att’y Gen. Op. Nos. GA-0307 (2005) at 5 (“an
individual may not simultaneously serve as trustee of the New Caney Independent School District
and director of the East Montgomery County Improvement District”); GA-0032 (2003) at 4-5 (a
person is barred from simultaneous service as director of the Clear Brook Municipal Utility District
and as trustee of the San Jacinto College District); GA-0015 (2003) at 4 (“the offices of county
commissioner and city council member in the same county are incompatible as a matter of law”);
JC-0557 (2002) at 3-6 (where boundaries of a school district and groundwater conservation district
overlap, an individual may not serve as director of both); JC-0363 (2001) at 2-3 (an individual may
not simultaneously hold the office of mayor and the position of director of a hospital district that has
condemned property within the mayor’s district); JC-0339 (2001) at 3 (a person is barred from
simultaneously holding offices of director of municipal utility district and member of Planning and
Zoning Commission of Missouri City); DM-311 (1994) at 2 (offices of county commissioner and
school district trustee are incompatible); JM-1266 (1990) at 4 (incompatibilitymaybaraperson from
serving both as city council member and as director of a navigation district); JM-129 (1984) at 2-3
(incompatibility bars a trustee of the Dallas County Community College from simultaneously serving
as a Dallas County commissioner). But the doctrine has sometimes, and sometimes not, been
applied to bar the simultaneous holding of two offices where one of the officers is not a member of
a local governing board but holds some other official position.
In Attorney General Opinion o-3308, the attorney general said that “there is no prohibition
in the laws of this State which would prevent a deputy sheriff of Grimes County to serve [sic] at the
same time as a school trustee of a common school district in said county.” Tex. Att’y Gen. Op. No.
O-3308 (1941) at 4. Similarly, a 1986 opinion found the offices of constable and school trustee to
be compatible. See Tex. Att’y Gen. Op. No. JM-5 19 (1986). That opinion relied in part on Opinion
O-3308 and in part on a 1896 Missouri Supreme Court case, which had also found that the position
of deputy sheriff was not incompatible with that of school trustee. See id. at 3-4.
In contrast to these two opinions, the attorney general has on three occasions held that certain
executive or judicial officers of a county or district may not simultaneously serve as a member of a
local governing board located within that county. The earliest attorney general opinion to find
incompatibility in such a situation dates from 1984. In Attorney General Opinion JM-133, this office
considered whether a county auditor was authorized to simultaneously serve as a council member
The Honorable Dennis Bonnen - Page 3 (GA-0328)
of a municipality located in the county where he served as auditor. Relying on the Thomas case, the
opinion noted that “there are many instances in which the duties of the auditor are likely to conflict
with the performance of city council duties, particularly when the transfer of funds or property
between the city and county is involved.” Tex. Att’y Gen. Op. No. JM-133 (1984) at 2. The opinion
concluded that the positions of county auditor and council member of a city located in that county
were incompatible as a matter of law. See id.
Two subsequent attorney general opinions have affirmed this view. In Attorney General
Letter Opinion 95-029, this office found that the positions of school trustee and countyattomeywere
incompatible. The opinion noted that “various statutes require the county attorney to initiate action
against school trustees under particular circumstances,” including removal, quo warranto, misuse
ofpublic funds, and election fraud. Tex. Att’y Gen. LO-95-029, at 3-4. The opinion concluded that
a county attorney was therefore barred from simultaneously serving as school trustee in his county.
Id.
Likewise, in Attorney General Letter Opinion 98-094, this office said that a district judge
may not simultaneously serve as a trustee of an independent school district located within the
jurisdiction of his court. See Tex. Att’y Gen. LO-98-094, at 3. The opinion distinguished the case
of Turner v. Trinity Independent School District Board of Trustees, 700 S.W.2d 1 (Tex. Civ.
App.-Houston [ 14th Dist.] 1983, no writ), which had held that the office ofjustice of the peace was
not incompatible with that of school trustee. See id. at 2-3. That case had been primarily based on
the fact that a justice court is one of limited jurisdiction. See id. The attorney general found that the
same reasoning applicable to a county attorney should also be applied to a district judge: “[A]
similar prohibition must attach to a district judge, in whose court such proceedings would be
adjudicated. It would be anomalous indeed if the prosecuting, but not the adjudicating, official were
precluded from performing such dual service.” Id. at 3.
Finally, in the most recent attorney general opinion to consider the matter of whether an
executive or judicial official could serve on the governing board of a local entity, this office found
that a county treasurer was not barred by conflicting loyalties incompatibility from simultaneously
holding the office of school trustee of a district located in the same county. See Tex. Att’y Gen. Op.
No. JC-0490 (2002) at 4. The opinion found that a county treasurer’s duties were simply too remote
to preclude the treasurer’s simultaneous service as a school trustee: “Because a county treasurer’s
authority to bring suit against an independent school district is limited to the recovery of funds owed
by the school district to the county, and because even that limited authority is not exclusive, we
conclude that conflicting loyalties incompatibility is not, as a matter of law, a bar to an individual’s
simultaneously holding the offrces of county treasurer and trustee of an independent school district
located within his or her county.” Id.
Your question is whether a county sheriff may simultaneously hold the position of trustee
of a school district located within the same county. Thus, we must determine whether the sheriffs
relationship to the school district is more like that of, on the one hand, the auditor to a city council
member, the county attorney to a school trustee, and the district judge to a school trustee; or, on the
other hand, like that of the constable to a school trustee and the county treasurer to a school trustee.
The Honorable Dennis Bonnen - Page 4 (GA-0328)
You have provided us with the following specific information regarding the relationship
between the sheriff and the school district:
Because East Chambers ISD is located in an unincorporated
area, the sheriff is its primary law enforcement authority in a variety
of matters. The sheriff is, for example, the law enforcement official
whom the district contacts when a crime is committed on district
property, when students are engaged in serious disciplinary
misconduct, when it has concerns of child abuse or neglect, etc. On
some occasions, the sheriff interacts with school authorities to assess
a student disciplinary incident, and the sheriff determines whether to
investigate crimes reported by the school district. These are but a few
examples of the relationship between the sheriff and the district. Any
number of law enforcement issues may arise at public schools
throughout the course of the school year.
Additionally, schools and law enforcement are required to
communicate with one another regarding certain matters, particularly
those involving student discipline and safety. For example, a
principal is required to notify the sheriff of the county in which the
school is located, if the principal has reasonable grounds to believe
that certain activities occur in school, on school property, or at a
school-sponsored or school-related activity on or off school property.
Similarly, a law enforcement agency that arrests any person or refers
a child to the office or official designated by the juvenile board who
the agency knows or believes is enrolled as a student in a public
primary or secondary school is required to orally notify the
superintendent or designee in the district in which the student is
enrolled or believed to be enrolled of that arrest or referral within 24
hours after the arrest or referral is made, or on the next school day.
Request Letter, supra note 1, at 2 (citation omitted).
The information you have furnished demonstrates a close, frequent relationship between the
school district and the sheriffs office. In light of these circumstances, we believe that the sheriffs
office is substantially more entangled with the school district than was the case with the county
attorney/school trustee and the district judge/school trustee in the attorney general opinions discussed
previously. Particularly in view of the fact that the school district in question is located in an
unincorporated area of the county where the sheriff serves as the primary law enforcement official,
we conclude that under the facts described, the Sheriff of Chambers County may not simultaneously
serve as a member of the board of trustees of an independent school district of the county in which
he serves as sheriff.
The Honorable Dennis Bonnen - Page 5 (GA-0328)
SUMMARY
The Chambers County Sheriff may not simultaneously serve
as a trustee of an independent school district located within an
unincorporated area of the county in which the sheriff serves as
the primary law enforcement official. Attorney General Opinions
O-3308 (1941) and JM-519 (1986) are overruled to the extent of
conflict.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WJLLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee