Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 13,2003
The Honorable Kenneth Armbrister Opinion No. GA-0032
Chair, Senate Committee on Natural Resources
Texas State Senate Re: Whether a member of the Board of
P. 0. Box 12068 Trustees of the San Jacinto College District
Austin, Texas 7871 l-2068 may simultaneously serve as a member of the
Board of Directors of the Clear Brook
Municipal Utility District (RQ-0596-JC)
Dear Senator Armbrister:
Your predecessor as chair of the Committee on Natural Resources requested our opinion as
to whether a member of the Board of Trustees of the San Jacinto College District (“the College
District”) may simultaneously serve as a member of the Board of Directors of the Clear Brook
Municipal Utility District (“the MUD”).’ Your predecessor asked us to analyze the situation under
article XVI, section 40 of the Texas Constitution and under the common-law doctrine of
incompatibility.
The College District is governed by a board of trustees, as provided by section 130.082(d)
of the Education Code. TEX. EDUC. CODE ANN. 8 130.082(d) (Vernon 2002). The trustees are
elected and serve a term of six years. Id. 9 130.082(e). The district’s service area is defined by
section 130.197 of the Education Code to include “(1) the Pasadena, La Porte, Deer Park,
Channelview, Galena Park, and Sheldon independent school districts; and (2) the part of the Clear
Creek Independent School District that is located in Harris County.” Id. 8 130.197. The board of
trustees of a junior college district “annually shall cause the taxable property in its district to
be assessed for ad valorem taxation and the ad valorem taxes in the district to be collected.”
Id. 8 130.12 1(a). Thus, the College District has the power of taxation. The members of the board
of trustees of a junior college district are prohibited Ii-om receiving “any remuneration or emolument
of office,” other than “reimbursement for their actual expenses incurred in performing their duties.”
Id. 8 130.082(d).
The MUD is a general law water district created under chapter 49 of the Water Code. In
accordance with that chapter, it “shall be governed by its board, the number of which is otherwise
‘Letter from Honorable J.E. “Buster” Brown, Chair, Senate Committee onNatural Resources, to Honorable John
Comyn, Texas Attorney General (Aug. 19,2002) (on file with Opinion Committee) mereinafier Request Letter].
The Honorable Kenneth Armbrister - Page 2 (GA-0032)
provided by law.” TEX. WATER CODEANN. 9 49.051 (Vernon 2000). Members of the board are
elected by the voters of the district. Id. 5 49.102(a) (Vernon Supp. 2003). A chapter 49 district “may
levy and collect a tax for operation and maintenance purposes.” Id. 5 49.107(a). The MUD thus has
the power of taxation.
The MUD is interested in appointing a College District trustee to a vacant position on the
MUD board. See Request Letter, supra note 1, at 1. As trustee of the College District, this person
“receives no fee of office.” Id. Additionally, the person “is included in the [College] District’s
health insurance plan.” Id. Although the individual would be permitted to receive a per diem
allowance as a member of the MUD board, he or she will “waive the receipt of the otherwise allowed
per diem allowance.” Id.
We first consider whether article XVI, section 40 of the Texas Constitution, which prohibits
a person from simultaneously holding two offices of emolument, applies to the situation your
predecessor described. In its final clause, article XVI, section 40 provides that “[n]o person shall
hold or exercise at the same time, more than one civil office of emolument.” TEX. CONST.art. XVI,
8 40. Under Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955), an officer
is an individual upon whom a “sovereign function of the government [has been] conferred . . . to be
exercised by him for the benefit of the public largely independent of the control of others.” Id. at
5 83. This office has construed the Aldine test to mean that an individual is an “officer” if his or her
actions are not subject to control by a superior body. Tex. Att’y Gen. Op. No. JM-1266 (1990)
at 2. Each of the positions at issue here clearly constitutes an office. Members of the two respective
boards under consideration are elected by the voters of their districts. Their actions are not
subject to control by a superior body, and their members consequently meet the definition of
“0 flicer” formulated by the Texas Supreme Court in Aldine. Aldine, 280 S.W.2d at 583.
An emolument is “a pecuniary profit, gain or advantage.” In fact, any amount received in
excess of actual expenses is an emolument. See Irwin v. State, 177 S.W.2d 970,973 (Tex. Crim.
App. 1944); see also Tex. Att’y Gen. Op. No. JM-1266 (1990) at 3; Tex. Att’y Gen. LO-95-001, at
2. In addition to salary and compensation, an emolument includes an amount received as a flat
payment per meeting, a fixed per diem allowance, or significantly, for our purposes here, payment
of hospitalization insurance. See Willis v. Potts, 377 S.W.2d 622 (Tex. 1964) (compensation in the
amount of $10.00 per meeting qualifies city council membership as a “lucrative office”), Tex. Att’y
Gen. Op. No. JM-704 (1987) at 2, Tex. Att’y Gen. LO-93-033 (emolument includes flat payment
per meeting); Tex. Att’y Gen. Op. No. JM-594 (1986), Tex. Att’y Gen. LO-98-055 (emolument
includes fixed per diem allowance); Tex. Att’y Gen. LO-97-100 (hospitalization insurance is an
emolument). Furthermore, a position is one “of emolument” if its emoluments are fixed by statute
or by a governmental body. Tex. Att’y Gen. Op. No. JM-333 (1985).
The position of a director of a utility district created under chapter 49 of the Water Code is
an office “of emolument” for the purposes of article XVI, section 40 of the Texas Constitution. The
director “is entitled to receive fees of office of not more than $150 a day for each day the director
actually spends performing the duties of a director.” TEX. WATERCODEANN. 8 49.060(a) (Vernon
The Honorable Kenneth Armbrister - Page 3 (GA-0032)
Supp. 2003). In addition, a director “is also entitled to receive reimbursement of actual expenses
reasonably and necessarily incurred while engaging in activities on behalf of the district.” Id.
8 49.060(b). “Instead of the fees of office and reimbursement of actual expenses, a director may
elect to receive a per diem of $100 for each day the director actually spends performing the duties
of a director.” Id. § 49.060(d). Thus, the position of director of the MUD is one “of emolument.”
Whether the position of a college district director is one of emolument is a closer question.
As we have noted, members of the board of a college district are not to “receive any remuneration
or emolument of office,” other than “reimbursement for their actual expenses incurred in performing
their duties,” TEX. EDUC. CODE ANN. 9 130.082(d) (V emon 2002). This provision was part of the
original codification of title 3 of the Education Code. See Act of May 22, 1971,62d Leg., RX, ch.
1024, 1971 Tex. Gen. Laws 3072,3294. In 1993, the legislature amended a portion of the former
Insurance Code to permit “a member of the governing board of an institution of higher education”
to participate in the Texas Employees Group Benefits Act as an employee.* See Act of May 29,
1993,73d Leg., R.S., ch. 791, 8 43, 1993 Tex. Gen. Laws 3127,3141-42. The present version of
that statute, section 155 1.101 of the Insurance Code, states that:
(d) An individual is eligible to participate in the group
benefits program as provided by Subsection (a) if the individual is a
member of the State Board of Education or the governing body of an
institution of higher education.
TEX. INS. CODE ANN. 0 1551.101(d) (V emon 2003). Section 155 1.006 provides that, with two
exceptions not relevant here, “‘institution of higher education’ means a public junior college.” Id.
$ 1551.006(a). Th us, if eligibility to participate in the group benefits program constitutes an
“emolument,” section 155 1.101 (a) of the Insurance Code might appear to irreconcilably conflict with
section 130.082(d) of the Education Code, which expressly prohibits a trustee of a junior college
district from receiving any “emolument of office.”
Nothing in the history of the legislation that declared junior college trustees eligible to
participate in the group benefits program indicates that the legislature intended thereby to repeal
section 130.082(d) of the Education Code. Where a statute does not contain an express repeal, the
presumption is that the legislature intended the old law to remain in operation. Cole v. State ex rel.
Cobolini, 170 S.W. 1036, 1037 (Tex. 1914). A repeal by implication will result only if the
implication is clear, necessary, irresistible, and free from reasonable doubt. Ramirez v. State, 550
S.W.2d 121, 124 (Tex. Civ. App.-Austin 1977, no writ). If under any reasonable construction two
statutory provisions can be reconciled so that both may stand, one will not be held to have repealed
the other. Cunningham v. Henry, 231 S.W.2d 1013,1017 (Tex. Civ. App.-Texarkana 1950, writ
*See TEX. INS. CODE ANN. $9 1551.001 (Vernon 2003) (“This chapter may be cited as the Texas Employees
Group Benefits Act.“), 1551.006(a) (“In this chapter, except as provided by Subsection (b), ‘institution of higher
education’ means a public junior college, a senior college or university, or any other agency of higher education within
the meaning and jurisdiction of Chapter 61, Education Code.“).
The Honorable Kenneth Armbrister - Page 4 (GA-0032)
ref d n.r.e.). Where there is no positive repugnance between the two provisions, each will be
construed so as to give effect to both. Standard v. Sadler, 383 S.W.2d 391,395 (Tex. 1964).
Furthermore, courts, and by extension, this office, are required to construe statutes, if at all
possible, so as to harmonize them with other relevant laws. La Sara Grain Co. v. First Nat ‘IBank,
673 S.W.2d 558,565 (Tex. 1984). Particularlywhen two statutes deal with the same general subject
matter, they should be reconciled in a way that will not destroy the effect of either. Goldman v.
State, 277 S.W.2d 217,222 (Tex. Civ. App.-Amarillo 1954, writ ref d n.r.e.). In the situation you
present, both of the statutes in question address the matter of emoluments for members of junior
college trustees. In order to harmonize them, one may interpret section 155 1.101 (a) to mean that the
legislature, in enacting that provision, deemed the mere eligibility to participate in a group benefits
program not to constitute an “emolument.” Such a construction salvages both provisions while most
effectively accomplishing legislative intent.
Because, then, a member of the board of trustees of the College District, by express statutory
provision, does not hold an office of emolument, there is no impediment under article XVI, section
40 of the Texas Constitution, to a single individual simultaneously holding both the offices of trustee
of the College District and member of the board of directors of the MUD.
This does not end our inquiry, however. We are also asked to consider whether there is any
conflict between the two positions under the common-law doctrine of incompatibility. That doctrine
has three aspects - self-appointment, self-employment, and conflicting loyalties. It is the last
category that concerns us here. Conflicting loyalties incompatibility was first recognized by a Texas
court in the case of Thomas v. Abernathy County Line Independent School District, in which the
court declared:
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 alderman 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 alderman 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 v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152,153 (Tex. Comm’n App. 1927,
judgm’t adopted).
The request letter states that the College District and the MUD have overlapping
geographical boundaries. Request Letter, supra note 1, at 1. As we have previously noted, both
entities have the power of taxation. See TEX. EDUC.CODEANN. 9 130.121 (a) (Vernon 2002); TEX.
The Honorable Kenneth Armbrister - Page 5 (GA-0032)
WATERCODEANN. 0 49.107(a) (Vernon Supp. 2003). Citing a number of previous attorney general
opinions, we recently affirmed the principle expressed in Attorney General Opinion JC-0557 that
“[i]f two districts with overlapping geographical jurisdictions each have the power of taxation, . . .
the potential for conflict is insurmountable.” See Tex. Att’y Gen. Op. No. GA-0015 (2003) at 2
(citing Tex. Att’y Gen. Op. No. JC-0557 (2002) at 5). Attorney General Opinion JC-0557 reasoned
that “[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’y
Gen. Op. No. JC-0557 (2002) at 5.
This reasoning is persuasive, and it clearly applies in the circumstances you describe. We
conclude that, on the basis of the common-law doctrine of incompatibility, an individual may not
simultaneously serve both as trustee of the San Jacinto College District and as director of the Clear
Brook Municipal Utility District.
The Honorable Kenneth Armbrister - Page 6 (GA-0032)
SUMMARY
Although the position of director of the Clear Brook
Municipal Utility District is an “office of emolument under article
XVI, section 40 of the Texas Constitution,” the position of trustee of
the San Jacinto College District is not. Thus, a single individual is
not prohibited by article XVI, section 40 of the Texas Constitution
from simultaneously holding both positions. An individual is,
however, barred from such simultaneous service on the basis of the
common-law doctrine of incompatibility.
Yours very truly,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General - General Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee