Can a Texas school board trustee also serve as county clerk?

TX AG Opinion GA-0468: Can a school trustee also serve as county clerk?

Plain-English summary

State Senator Jeff Wentworth, chairing the Senate Committee on Jurisprudence, asked whether a member of a school district board of trustees could simultaneously serve as county clerk of the county where the district is located. The question arose because a trustee of the San Marcos Consolidated Independent School District was running for Hays County clerk in the November election. If she won, her clerk term would start January 1, 2007, while her trustee term ran until May 2008, so the two would overlap.

The Attorney General worked through two bodies of law. First, article XVI, section 40 of the Texas Constitution bars one person from holding two civil offices "of emolument," meaning paid offices. A county clerk is paid, so the clerk holds an office of emolument. But a school district trustee serves without compensation, so the trustee position is not an office of emolument. Because one of the two offices carries no pay, the dual-office ban in section 40 does not apply.

Second, the common-law doctrine of incompatibility, which has three branches: self-appointment, self-employment, and conflicting loyalties. The first two did not apply, since a county clerk and a school trustee do not appoint or employ each other. The conflicting-loyalties branch comes from a 1927 decision holding the offices of school trustee and city alderman incompatible because a city council had supervisory powers over school matters. Texas opinions have applied that branch to bar, for example, a county attorney or a district judge from serving as a school trustee within their jurisdiction, and sometimes a sheriff. But the office has to actually conflict.

Looking at the county clerk's duties (serving as clerk of the county and commissioners courts, recording deeds, mortgages, plats, and military discharges, collecting filing fees, issuing marriage licenses, taking affidavits), the opinion found none that conflict with the duties of a school trustee. So it concluded a trustee is not, as a matter of law, prohibited from also serving as county clerk. The opinion did add one caution, echoing an earlier opinion (JC-0490) about county treasurers: article XVI, section 65 of the Constitution can cause certain county and district officers, including county clerks, to automatically resign if they become candidates for another office while more than a year remains on their term. That automatic-resignation rule could complicate the dual service down the line.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional and statutory provisions on dual officeholding may have changed since 2006. Anyone weighing whether two specific offices may be held at once today should check current law rather than relying on this opinion.

Who this opinion affected (as of 2006)

School trustees and county clerks: The opinion told them that one person could, as a matter of law, hold both positions, because the offices were neither both paid (section 40) nor in conflict (incompatibility).

Election officials and candidates: The opinion explained the analysis a candidate for a second office should run through, and flagged the separate automatic-resignation rule in article XVI, section 65 as a potential complication.

Other local officials considering dual service: The opinion is a useful map of how the conflicting-loyalties branch of incompatibility has been applied, barring some combinations (county attorney, district judge, sometimes sheriff with a trustee post) while allowing others.

Common questions

Does the constitution bar holding both offices?
Not under the dual-paid-office ban. The opinion concluded article XVI, section 40 does not apply because a school trustee serves without compensation, so only one of the two offices is an office of emolument.

What about the common-law incompatibility doctrine?
The opinion found it did not bar the combination. The clerk and trustee do not appoint or employ each other, and the clerk's duties do not conflict with the trustee's, so conflicting-loyalties incompatibility did not apply.

Are there combinations that ARE barred?
Yes. The opinion noted a county attorney or a district judge generally cannot serve as a trustee within their jurisdiction, and a sheriff sometimes cannot, because those offices have powers that conflict with a trustee's role.

Is there any catch for the clerk?
The opinion cautioned that article XVI, section 65 can trigger automatic resignation of a county clerk who becomes a candidate for another office while more than a year remains on the clerk's term, which could complicate dual service.

Background and statutory framework

Article XVI, section 40(a) bars holding more than one civil office of emolument (Tex. Const. art. XVI, § 40(a)). A county clerk is compensated (Tex. Loc. Gov't Code Ann. § 152.011 (Vernon 1999)), but a school trustee serves without pay (Tex. Educ. Code Ann. § 11.061(d) (Vernon 2006)), so section 40 does not apply. The common-law incompatibility doctrine has self-appointment, self-employment, and conflicting-loyalties branches (Tex. Att'y Gen. Op. No. GA-0015 (2003)); the conflicting-loyalties branch traces to Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted).

The county clerk is a constitutional officer who serves as clerk of the county and commissioners courts and county recorder (Tex. Const. art. V, § 20), with statutory duties including issuing marriage licenses and taking affidavits (Tex. Gov't Code Ann. § 51.402(a), (b) (Vernon 2005)), keeping the commissioners court's records (Tex. Loc. Gov't Code Ann. § 81.003(a) (Vernon Supp. 2006)), collecting filing fees (id. §§ 118.011, 118.051 (Vernon 1999 & Supp. 2006)), and recording deeds, mortgages, plats, and military discharges (id. §§ 191.001, 191.004, 192.001, 192.0015, 192.002). Finding none of these in conflict with a trustee's duties (compare id. § 113.902(a) (county treasurer's debt-recovery duty), discussed in Tex. Att'y Gen. Op. No. JC-0490 (2002), and Tex. Att'y Gen. Op. No. GA-0328 (2005) (sheriff)), the opinion concluded the dual service is not barred, subject to the caution about article XVI, section 65 (Tex. Const. art. XVI, § 65(b)).

Citations

Statutes:

• Tex. Const. art. XVI, §§ 40(a), 65(b); art. V, § 20
• Tex. Loc. Gov't Code Ann. §§ 152.011, 118.011, 118.051, 191.001, 191.004, 192.001, 192.0015, 192.002, 113.902(a) (Vernon 1999 & Supp. 2006); § 81.003(a) (Vernon Supp. 2006)
• Tex. Educ. Code Ann. § 11.061(d) (Vernon 2006)
• Tex. Gov't Code Ann. § 51.402(a), (b) (Vernon 2005)

Cases and prior opinions:

• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)
• Tex. Att'y Gen. Op. Nos. GA-0015 (2003), GA-0328 (2005), JC-0490 (2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0468
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0468.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 25, 2006

The Honorable Jeff Wentworth
Chair, Committee on Jurisprudence
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0468

Re: Whether a member of a school district board of trustees may simultaneously serve as county clerk of the county in which the school district is located (RQ-0470-GA)

Dear Senator Wentworth:

You ask whether a member of a school district board of trustees may simultaneously serve as county clerk of the county in which the school district is located.

You indicate that a trustee of the San Marcos Consolidated Independent School District is a candidate for county clerk of Hays County in the November election. See Request Letter, supra note 1, at 1. If she is elected, her term as county clerk would begin on January 1, 2007. Id. Her term as school trustee expires in May 2008. See id. In determining whether she may serve in both offices simultaneously, we must address article XVI, section 40 of the Texas Constitution as well as the common-law doctrine of incompatibility. See TEX. CONST. art. XVI, § 40.

Article XVI, section 40(a) provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." Id. A county clerk receives a salary and thus holds an office of emolument. See TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999) (commissioners court of a county shall set the amount of the compensation for county and precinct officers). On the other hand, a school district trustee "serve[s] without compensation," and thus does not hold an office of emolument. See TEX. EDUC. CODE ANN. § 11.061(d) (Vernon 2006). As a result, article XVI, section 40 does not bar a member of a school district board of trustees from simultaneous service as a county clerk.

We must also consider the common-law doctrine of incompatibility, which has three aspects: self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0015 (2003) at 1. Because a county clerk neither appoints nor employs a school trustee, and a school trustee neither appoints nor employs a county clerk, the first two aspects of the doctrine are not applicable to the situation you pose. The third aspect of the doctrine-conflicting loyalties-derives from a 1927 opinion of the Texas Commission of Appeals that found the offices of school trustee and city alderman 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 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.

Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (citation omitted).

It is well established that both positions must be offices in order for conflicting loyalties incompatibility to be applicable. See Tex. Att'y Gen. Op. Nos. GA-0350 (2005) at 4, GA-0273 (2004) at 3, JM-1266 (1990) at 4. A substantial majority of attorney general opinions involving conflicting loyalties incompatibility address situations in which both offices constitute membership on a local governing board. But the concept has also been applied, as here, where one of the offices does not constitute membership on a local governing board but involves some other official position. The attorney general has said, for example, that a county attorney may not serve on the board of trustees of a school district located in his county because a county attorney is authorized to investigate matters and initiate actions involving school trustees. See Tex. Att'y Gen. LO-95-029, at 4. For similar reasons, a district judge is barred from serving as a trustee of an independent school district located within his jurisdiction. See Tex. Att'y Gen. LO-98-094, at 3. Moreover, if there is a close and frequent relationship between a school district and a sheriff's office, particularly where the district embraces an unincorporated area of the county, a sheriff may not simultaneously serve as a school trustee of that district. Tex. Att'y Gen. Op. No. GA-0328 (2005) at 4.

On the other hand, this office has declared that a member of a school district board of trustees is not as a matter of law prohibited from simultaneously holding the office of county treasurer. See Tex. Att'y Gen. Op. No. JC-0490 (2002) at 1. That opinion reviewed the duties of a county treasurer and found that, although a number of statutes relate peripherally to the duties of treasurer with regard to school funds, these statutes "appear to prescribe purely ministerial duties." Id. at 3. The opinion also discussed section 113.902 of the Local Government Code, which requires a county treasurer to "direct prosecution for the recovery of any debt owed to the county," and to "supervise the collection of the debt." Id. (quoting TEX. LOC. GOV'T CODE ANN. § 113.902(a)). The opinion noted, however, that this duty was non-exclusive, and that if it were determined that funds were owed to the county by the school district, the commissioners court would be the proper authority to initiate suit to recover those funds. Id. at 4. Accordingly, this office concluded that a county treasurer was not barred as a matter of law from simultaneously serving as a school district trustee. See id. The opinion cautioned, however, that article XVI, section 65 of the Texas Constitution might, in the long run, complicate such dual service. See id. That provision effects the automatic resignation of certain county and district officers, including county clerks, who announce their candidacy or become a candidate for another office of profit or trust "at any time when the unexpired term of the [county or district] office then held shall exceed one (1) year." See TEX. CONST. art. XVI, § 65(b).

We must now determine whether holding the office of county clerk is incompatible with service on a school district board of trustees. The Texas Constitution provides, in relevant part:

Sec. 20. There shall be elected for each county, by the qualified voters, a County Clerk, who shall hold his office for four years, who shall be clerk of the County and Commissioners Courts and recorder of the county . . . .

Id. art. V, § 20. Various statutes prescribe other duties of a county clerk. Section 51.402 of the Government Code declares that a county clerk may "issue marriage licenses" and "take affidavits and depositions." TEX. GOV'T CODE ANN. § 51.402(a) (Vernon 2005). That statute also requires the clerk, "[o]n the last day of each term of the court, [to] make a written statement of fines and jury fees received since the last statement." Id. § 51.402(b). A county clerk has, in addition, prescribed duties under the Local Government Code. She serves, for example, as the clerk of the commissioners court, which requires, inter alia, that she "keep the court's books, papers, records, and effects" and "issue the notices, writs, and process necessary for the proper execution of the court's powers and duties." TEX. LOC. GOV'T CODE ANN. § 81.003(a) (Vernon Supp. 2006). Other duties relate to the collection of fees for filing, issuing, and certifying various documents, the impaneling of juries, and the swearing of witnesses. See id. §§ 118.011, .051 (Vernon 1999 & Supp. 2006). Finally, the clerk has numerous duties relating to the recording of various documents and instruments, including deeds, mortgages, subdivision plats, and military discharges. Id. §§ 191.001, .004, 192.001, .0015, .002.

None of the aforementioned responsibilities indicate that there is any conflict between the duties of a county clerk and the duties exercised by an independent school district trustee. We conclude, therefore, that a member of a school district board of trustees is not as a matter of law prohibited from simultaneously serving as county clerk of a county in which the school district is located. As stated in Attorney General Opinion JC-0490, however, we caution that article XVI, section 65 of the Texas Constitution may ultimately complicate such dual service. See Tex. Att'y Gen. Op. No. JC-0490 (2002) at 4.

SUMMARY

A member of a school district board of trustees is not as a matter of law prohibited from simultaneously serving as county clerk of a county in which the school district is located.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas (Mar. 22, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].