Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 6, 2009
The Honorable Jeff Wentworth Opinion No. GA-0688
Chair, Committee on Jurisprudence
Texas State Senate Re: Whether the police chief of an independent
Post Office Box 12068 school district may simultaneously serve as a
Austin, Texas 78711-2068 member of a city council of a city that is located
within the geographical boundaries of the school
district (RQ-0724-GA)
Dear Senator Wentworth:
You ask whether an individual may simultaneously serve as a chief of police of an
independent school district and a city council member of a city located within the geographical
boundaries of the school district without violating the doctrine of incompatibility. 1
The common-law doctrine of incompatibility prohibits an individual from "appointing
himself to another public position, or from holding both an office and an employment subordinate
to the office." Tex. Att'y Gen. Ope No. GA-0488 (2006) at 2; see also Ehlinger V. Clark, 8 S.W.2d
666, 674 (Tex. 1928) (voiding a county contract employing county commissioner as an attorney
relying on the rule that officers who have the appointing power are "disqualified for appointment to
the offices to which they may appoint"). "Because neither the police chief nor the city council
appoints or employs the other, the self-appointment and self-employment strands of the
incompatibility doctrine are not applicable here.
This common-law doctrine also prohibits an individual from holding two public offices that
perform inconsistent or conflicting duties. See Thomas v. Abernathy County Indep. Sch. Dist., 290
S.W. 152,153 (Tex. Comm'n App. 1927,judgm't adopted) (concluding that the public offices of
school trustee and city aldermen are incompatible because the city aldermen have "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[s] performable within its limits"). Attorney general opinions
have described this strand of the doctrine as conflicting loyalties incompatibility. See, e.g., Tex.
Att'y Gen. Ope Nos. GA-0538 (2007) at 1-2, GA-0328 (2005) at 1-2.
ISee Request Letter (available at http://www.texasattomeygeneral.gov).
The Honorable Jeff Wentworth - Page 2 (GA-0688)
In order for conflicting loyalties incompatibility to apply, however, both positions must
constitute "offices." See Thomas, 290 S.W. at 153 (concluding that the "offices ofschool trustee and
alderman are incompatible"); see also Tex. Att'y Gen. Ope No. GA-0393 (2006) at 2-3 ("The clear
message of Thomas is that, in order for conflicting loyalties incompatibility to be applicable to
a particular situation, each position must constitute an 'office."'). The decisive factor which
distinguishes an officer from an employee, as explained by the Texas Supreme Court in Aldine
Independent School District v. Standley, is "whether any sovereign function of the government is
conferred upon the individual to be exercised by him for the benefit ofthe public largely independent
of the control of others." 280 S.W.2d 578, 583 (Tex. 1955)2 (quoting Dunbar v. Brazoria County,
224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ refd)).
Relying on the Aldine rationale, this office has opined that, in general, an individual whose
actions are subject to the control ofothers is not an "officer." See Tex. Att'y Gen. Ope No. GA-0538
(2007) at 2. In particular, this office in Attorney General Opinion GA-0393 advised that a city chief
of police-who by statute served at the pleasure of the city's governing body-was "an employee
rather than an officer" because "[h]isactions are subject to control and his employment may be
terminated at will by the governing body." Tex. Att'y Gen. Ope No. GA-0393 (2006) at 3-4.
Accordingly, the opinion concluded that the particular individual was not prohibited by conflicting
loyalties incompatibility from simultaneously serving as a member of the board of trustees of an
independent school district located within the geographical limits of city. Id. at 4.
Based on the statutory provisions applicable to an independent school district, a school
district police chiefs actions are subject to the control of the district's board of trustees and school
superintendent. The authority to govern and manage an independent school district is vested in its
board of trustees. TEx. EDUC. CODE ANN. §§ 11.051(a)(I), .151(b) (Vernon 2006 & Supp. 2008).
A school district police chief is employed by the board of trustees. See id. .§ 37.081 (a) (Vernon
2006) (authorizing board of trustees to "employ security personnel" and "commission peace
officers"). The police chief performs the duties for the school district as determined by the board
of trustees. See id. § 37.081(d) (providing that "district peace officer shall perform administrative
and law enforcement duties" as determined by the board). Moreover, the police chiefis "accountable
to the superintendent" and reports "to the superintendent," who in tum is employed by and reports
to the board of trustees. Id. § 37.081(f); see also ide § 11.201(a)-(b) (Vernon Supp. 2008)
(authorizing board oftrustees to employ a school superintendent, who is "the educational leader and
chief executive officer of the school district"); Pena v. Rio Grande City Consolo Indep. Sch. Dist.,
616 S.W.2d 658, 660 (Tex. App.-Eastland 1981, no writ) (concluding that a school superintendent
is an employee or agent of the board of trustees and not an officer for the purposes of nepotism
statutes). Under these provisions, the police chief is subject to the control of others-the school
superintendent and the board of trustees-and cannot be said to exercise authority "largely
independent of the control of others." He is thus an employee rather than an "officer" under the
standard established by Aldine and followed by this office. Consequently, the police chief position
is not an "office" to which the conflicting loyalties incompatibility doctrine applies.
2Disapprovedsub nom on other grounds by Nat'! Sur. Corp. v. FriendswoodIndep. Sch. Dist., 433 S.W.2d 690
(Tex. 1968).
The Honorable Jeff Wentworth - Page 3 (GA-0688)
SUMMARY
The common-law doctrine ofincompatibility does not bar an
individual from simultaneously serving as the chief of police of an
independent school district and as a city council member of a city
located within the geographical limits of the school district.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee