Can a city council member be appointed to a separate government board by their own council?

Plain-English summary

When Kelly Air Force Base in San Antonio was closing, the city set up a new public entity to manage the transition of the base property to civilian use, eventually the Greater Kelly Development Authority (GKDA), created under chapter 378 of the Local Government Code as a special district and political subdivision of the state. The San Antonio City Council appointed an eleven-member board, and one council member nominated himself for a seat. The ordinance creating the board even said outright that being an elected official did not make a person ineligible. Senator Jeff Wentworth asked whether the common-law doctrine of incompatibility nonetheless barred that self-appointment.

The opinion said it did. The common-law doctrine of incompatibility has several branches. One bars a single person from holding two offices whose duties conflict. Another, called self-appointment incompatibility, prevents an officer who holds appointing power from appointing himself (or being appointed by the body he sits on) to another office. Under that branch, a city council cannot appoint one of its own members to another office. Because the rule comes from the common law, the legislature can override it by statute, and a home-rule city can sometimes override it too, but only within its own house. An earlier opinion (JM-1087) held that a home-rule city may use its charter to overcome incompatibility when both positions are city offices, entirely within the city's structure of self-government.

Here, though, the second position was not a city office. The GKDA is a separate political subdivision, not part of San Antonio's internal government. A home-rule city's legislative authority does not reach that far: its ordinance cannot exempt a council appointment to the governing body of another governmental unit from the incompatibility doctrine. Deciding whether to allow a city to appoint its own members to the board of a different political subdivision is a job for the legislature, not the city. So the opinion concluded San Antonio lacked authority to adopt an ordinance letting the city council appoint its members to the GKDA board.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Senator Jeff Wentworth (what the opinion held): The opinion answered that the common-law doctrine of incompatibility did bar the self-appointment, and that San Antonio's ordinance could not override the doctrine because the GKDA board is the governing body of a separate political subdivision.

The City of San Antonio and its council (what the opinion held for them): The opinion held the city lacked authority to adopt an ordinance authorizing the council to appoint its own members to the GKDA board, notwithstanding the ordinance language declaring elected officials eligible.

Home-rule cities generally (what the opinion held for them): The opinion held that a home-rule city may use a charter provision to overcome incompatibility between two city offices that are within its own structure of self-government, but not when one of the offices is a regional office or a position on the governing body of another political subdivision; that exemption is for the legislature to grant.

Common questions

Can a city council appoint one of its own members to another government board?
Generally no. The opinion concluded the self-appointment branch of the common-law incompatibility doctrine bars an officer with appointing power from appointing himself, so a council cannot appoint one of its members to another office.

Didn't the ordinance say elected officials were eligible?
Yes, but the opinion concluded the ordinance could not override the common-law doctrine for an appointment to the board of a separate political subdivision. A city's legislative authority does not reach that far.

When can a home-rule city override the incompatibility doctrine?
The opinion explained a home-rule city may use a charter provision to overcome incompatibility when both positions are city offices within its own structure of government. It cannot do so when one position is a regional office or on the governing body of another political subdivision.

Who can authorize a city to appoint its members to another entity's board?
The opinion concluded that is for the legislature to decide, not the city.

Background and statutory framework

In 1995 San Antonio created the Greater Kelly Development Corporation under the Development Corporation Act of 1979 (Tex. Rev. Civ. Stat. Ann. art. 5190.6) to manage Kelly Air Force Base's transition to private ownership. The legislature then adopted chapter 378 of the Local Government Code, validating defense base development corporations formed for base closures or realignments under the federal Defense Base Closure and Realignment Act of 1990 (10 U.S.C. § 2687) and authorizing a municipality to establish a defense base development authority as successor in interest. Such an authority is "a special district and political subdivision of this state" with a boundary coterminous with the base property (Tex. Loc. Gov't Code § 378.002(a)), formed to take title to or operate the base property and engage in its economic development (§ 378.003). In November 1999 San Antonio adopted an ordinance dissolving the corporation and establishing the GKDA as successor, and under section 378.007 appointed an eleven-member board (members serve up to two-year terms, without compensation but with expense reimbursement); the ordinance provided that each council member would nominate one board member and that being an elected official did not make a person ineligible (San Antonio, Tex., Ordinance 90,826 (Nov. 4, 1999)).

The common-law doctrine of incompatibility bars holding two conflicting offices (Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)), or an office and a position it supervises, and prevents an officer with appointing power from appointing himself to another office or position (Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)). Because the doctrine is common law, the legislature may alter it (Houston Pipe Line Co. v. Beasley, 49 S.W.2d 950 (Tex. Civ. App.-Galveston 1932, no writ)). A home-rule city derives its legislative authority directly from the Texas Constitution (Tex. Const. art. XI, § 5; Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975); Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948)) and has full self-government powers limited only by the constitution and general law (Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993); City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17 (Tex. 1990); Tex. Loc. Gov't Code § 51.072). Earlier Opinion JM-1087 held a home-rule city could use its charter to overcome incompatibility between two city offices entirely within the city's structure, but a city charter provision does not overcome the doctrine where one office is a regional office, and likewise cannot do so where the city council appoints officers to another political subdivision such as the GKDA. The opinion concluded that exempting such appointments is a decision for the legislature, so San Antonio lacked authority to adopt the ordinance authorizing the council to appoint its members to the GKDA board.

Citations

Statutory and constitutional provisions:

• Tex. Rev. Civ. Stat. Ann. art. 5190.6 (Vernon 1987 & Supp. 2000)
• Tex. Loc. Gov't Code Ann. § 378.002(a) (Vernon Supp. 2000)
• Tex. Loc. Gov't Code Ann. § 378.003 (Vernon Supp. 2000)
• Tex. Loc. Gov't Code Ann. § 378.007(b), (e) (Vernon Supp. 2000)
• Tex. Loc. Gov't Code Ann. § 51.072 (Vernon 1999)
• Tex. Const. art. XI, § 5
• 10 U.S.C. § 2687

Cases:

• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Houston Pipe Line Co. v. Beasley, 49 S.W.2d 950 (Tex. Civ. App.-Galveston 1932, no writ)
• Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)
• Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993)
• City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17 (Tex. 1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0225
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0225.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

May 22, 2000

The Honorable Jeff Wentworth
Chair, Nominations Committee
Texas State Senate
P.O. Box 12068, 1E.9
Austin, Texas 78711-2068

Opinion No. JC-0225

Re: Whether a member of a city council may appoint himself to a city board under a particular ordinance (RQ-0152-JC)

Dear Senator Wentworth:

You ask whether the common-law doctrine of incompatibility bars the City Council of San Antonio from appointing a member of the city council to the Board of the Greater Kelly Development Authority, if the ordinance establishing the board provides that an elected official may serve on the board. San Antonio, a home-rule city, lacks authority to exempt the city council's appointments to the governing body of another political subdivision, such as the Greater Kelly Development Authority, from the common-law doctrine of incompatibility.

In 1995, the City of San Antonio created the Greater Kelly Development Corporation pursuant to the Development Corporation Act of 1979, TEX. REV. CIV. STAT. ANN. art. 5190.6 (Vernon 1987 & Supp. 2000) to manage the transition of Kelly Air Force Base from a governmental facility to private ownership. Brief from Honorable Frank J. Garza, City Attorney, City of San Antonio, Tex., to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General (Jan. 7, 2000) (on file with Opinion Committee) [hereinafter "Garza brief"]. The legislature subsequently adopted chapter 378 of the Local Government Code,[1] which validated defense base development corporations established to promote projects regarding a military base closure or realignment under the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. § 2687) and authorized a municipality to establish a defense base development authority as a successor in interest to a defense base development corporation. Act of May 30, 1999, 76th Leg., R.S., ch. 1221, §§ 1-2, 1999 Tex. Gen. Laws 4250, 4250-53. An authority created by a city under chapter 378 is "a special district and political subdivision of this state, with a boundary coterminous with the base property" described in the resolution creating the authority. TEX. LOC. GOV'T CODE ANN. § 378.002(a) (Vernon Supp. 2000). Its purpose is to "accept title to or operate under a lease from the United States or any other person all or a part of the base property and areas around the base property" and to "engage in the economic development" of that property. Id. § 378.003.

In November 1999, the city council adopted an ordinance pursuant to Local Government Code chapter 378 to dissolve the corporation and establish the Greater Kelly Development Authority (the "GKDA") as its successor in interest. Garza brief; see TEX. LOC. GOV'T CODE ANN. §§ 378.001, .002 (Vernon Supp. 2000). In the ordinance the city council also exercised its authority under section 378.007 of the Local Government Code to appoint an 11-member managing board for the GKDA, including among other appointees a member of the city council who had nominated himself for the board. Letter from Honorable Jeff Wentworth, to Honorable John Cornyn, Texas Attorney General (Nov. 24, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"]; Garza brief, supra, at 1. Under section 378.007 of the Local Government Code, the governing body of the municipality that establishes the authority "shall appoint each board member to a term not exceeding two years." TEX. LOC. GOV'T CODE ANN. § 378.007(b) (Vernon Supp. 2000). Board members serve without compensation but may be reimbursed for expenses. Id. § 378.007(e). The ordinance creating the GKDA and appointing its board of directors included the following provision:

The Board of Directors of the Greater Kelly Development Authority shall consist of eleven members, including business and community representatives in the area of Kelly Air Force Base. The mayor and each member of the City Council shall nominate one (1) member of the Board. An individual who is otherwise eligible to serve on the Board is not ineligible because the individual is an elected official. The Board of Directors shall have the powers, authority and duties provided under the Act.

San Antonio, Tex., Ordinance 90,826 (Nov. 4, 1999) (emphasis added).

You ask whether the common-law doctrine of incompatibility prevents the city council member from nominating himself to the board and being appointed to it by the city council when the ordinance establishing the board provides that an elected official may serve on the board. The city attorney reads the term "an elected official" as including members of the city council. Garza brief, supra, at 2. We will adopt his interpretation for purposes of this opinion.

The common-law doctrine of incompatibility bars one person from holding two offices if their duties conflict, Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), or an office and employment if the office has a supervisory role over the employment, Tex. Att'y Gen. LA-75-114. It also prevents an individual with appointing power from appointing himself to another office or position. Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Under the latter aspect of common-law rule of incompatibility, a city council could not appoint one of its members to another office. See Tex. Att'y Gen. Op. No. JM-1069 (1989) at 4; Tex. Att'y Gen. LO-94-020, at 1.

Because incompatibility is a common-law doctrine, it may be overcome by statute. See Houston Pipe Line Co. v. Beasley, 49 S.W.2d 950, 952 (Tex. Civ. App.-Galveston 1932, no writ) (legislature may alter or repeal rule of common law within constitutional bounds); Tex. Att'y Gen. LO's-96-064, at 2; 95-052 (1995), at 6. In addition, Attorney General Opinion JM-1087 determined that a home-rule city could exercise its legislative authority to except city officers from the common-law doctrine of incompatibility under limited circumstances. Tex. Att'y Gen. Op. No. JM-1087 (1989). A home-rule city derives its legislative authority directly from the Texas Constitution. TEX. CONST. art. XI, § 5; Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975); Forwood v. City of Taylor, 214 S.W.2d 282, 286 (Tex. 1948). It has full powers of self-government and authority to adopt charter provisions and ordinances not inconsistent with the constitution or general law, and it looks to legislation for limits on its power, rather than authorization. Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490 (Tex. 1993); City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17, 18 (Tex. 1990); Forwood, 214 S.W.2d at 286; Tex. Att'y Gen. Op. Nos. JC-145 (1999) at 2; JC-142 (1999) at 4. The grant of powers to a home-rule city by the Local Government Code does not prevent, by implication or otherwise, the city from exercising the authority incident to local self-government. TEX. LOC. GOV'T CODE ANN. § 51.072 (Vernon 1999). Any ordinance or resolution adopted by a home-rule city must also be consistent with the city charter. Lower Colorado River Auth., 523 S.W.2d at 643-44; Tex. Att'y Gen. Op. No. H-936 (1977) at 1.

At issue in Attorney General Opinion JM-1087 (1989) was a home-rule city charter provision that authorized the mayor to serve as city manager, a dual service ordinarily prohibited by the common-law doctrine of incompatibility. See Tex. Att'y Gen. LA-75-114 (positions of school district trustee and school teacher are incompatible because of trustees' supervisory role as to teachers). Attorney General Opinion JM-1087 found that no constitutional provision or general law limited the city's authority to adopt the charter provision in question. It determined that "a city charter provision which is not contrary to a specific state law, or which does not purport to act in a field which has been fully occupied by the legislature, is itself sufficient to overcome the common law." Tex. Att'y Gen. Op. No. JM-1087 (1989) at 2 (emphasis in original); see also Tex. Att'y Gen. Op. No. 94-020 (1994) at 5.

The two positions at issue in Attorney General Opinion JM-1087 were entirely within the structure of the city government and thus within the area of the home-rule city's legislative authority. The opinion stands for the proposition that, "with regard to two city offices, a home-rule municipality may overcome the common-law doctrine of incompatibility by means of a provision in its city charter." Tex. Att'y Gen. LO-94-020, at 5. A home-rule city charter provision "does not, however, overcome the common-law principle when one of the offices is a regional office." Id. Nor does it overcome the common-law doctrine of incompatibility where the home-rule city council appoints officers to another political subdivision, such as the GKDA. It is for the legislature to decide whether to exempt a city's appointment to the board of another governmental unit from the common-law doctrine of incompatibility. See generally Tex. Att'y Gen. Op. No. DM-428 (1996) (legislature is the appropriate body to determine whether holding of multiple municipal judgeships is "of benefit to the State" within article XIV, section 40 of the Texas Constitution). Accordingly, the City of San Antonio lacks authority to adopt an ordinance authorizing the city council to appoint its members to the Board of the Greater Kelly Development Authority.

[1] Another law adopted by the Seventy-sixth Legislature was also codified as chapter 378 of the Local Government Code. See Act of May 17, 1999, 76th Leg., R.S., ch. 305, § 1, 1999 Tex. Gen. Laws 1209 (neighborhood empowerment zones). References to Local Government Code sections 378.001, 378.002 and 378.003 in this opinion are to provisions as added by Act of May 30, 1999, 76th Leg., R.S., ch. 1221, § 1, 1999 Tex. Gen. Laws 4250, 4251.

SUMMARY

The common-law doctrine of incompatibility prevents an officer with appointing power from appointing himself to another office or position. While an ordinance of a home-rule city may exempt city offices from this rule, it may not exempt a city council appointment to the governing body of another political subdivision from the common-law doctrine of incompatibility. San Antonio, a home-rule city, lacks authority to adopt an ordinance providing that a member of the city council may be appointed by the city council to serve on the Board of the Greater Kelly Development Authority.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee