Can the same person in Texas be both a city mayor and a director of a hospital district?

Plain-English summary

The mayor of La Vernia, a small city in Wilson County, had a long record of local service: city council from 1975 to 1982 and again from 1985 until his election as mayor in May 2000, plus a seat on the Wilson County Memorial Hospital District Board starting in 1987, where he was elected board president in 1999. Both the city and the hospital district have taxing authority and the power of condemnation, and their territories overlap. In April 2000 the hospital district board voted to condemn property to build a clinic inside a La Vernia subdivision, and shortly after, the La Vernia city council (the mayor sits on it) passed a resolution opposing the clinic. The city attorney asked whether one person could legally hold both offices at once. A state representative forwarded the question to the Attorney General.

The opinion concluded he could not. Article XVI, section 40 of the Texas Constitution bars dual office holding only for offices that pay (offices "of emolument"), and neither the mayor's seat nor the hospital board seat was compensated, so that provision did not apply. But the common-law doctrine of incompatibility reaches further. Its "conflicting loyalties" branch, first stated in Thomas v. Abernathy, bars one person from holding two offices whose governing bodies have directory or supervisory power over each other. The opinion called this a "textbook case": two bodies with taxing and condemnation power in overlapping territory, with one of them having actually condemned property in the other, and the city's governing body formally opposing that condemnation. Because qualifying for and accepting a second incompatible office works as an automatic resignation from the first, the opinion concluded that when the individual became mayor in May 2000, his term as hospital district board president ended automatically at that moment.

Currency note

This opinion was issued in 2001. 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 mentioned here.

What the opinion meant for those who asked

The official holding both seats (what the opinion held for him): The opinion held that he could not lawfully serve as both mayor and hospital district director, and that by taking the mayor's office in May 2000 he had automatically vacated the hospital board presidency.

The City of La Vernia and its attorney (what the opinion held for them): The opinion confirmed that the common-law conflicting-loyalties doctrine, not just the constitutional emolument rule, governed the situation, and that on these facts the two offices were incompatible.

The Wilson County Memorial Hospital District (what the opinion held for it): The opinion treated the board presidency as already vacated by operation of law as of the mayor's May 2000 election.

Common questions

Can one person in Texas hold two unpaid local offices at the same time?
Sometimes, but not always. The opinion explained that the constitutional ban on dual office holding applies only to paid offices, but the separate common-law incompatibility doctrine can bar holding two unpaid offices when the two bodies have overlapping authority over each other.

What made these two offices incompatible?
The opinion pointed to the overlap: both the city and the hospital district had taxing and condemnation power in the same area, the district had actually condemned land in the city, and the city council had formally opposed that condemnation. That combination created the "conflicting loyalties" the doctrine forbids.

What happens to the first office when someone takes a conflicting second one?
The opinion applied the settled rule that qualifying for and accepting the second office automatically ends the first. So the hospital board presidency ended on its own when the individual assumed the mayor's office.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution prohibits holding more than one civil office of emolument, with limited exceptions, but by its terms reaches only compensated offices. The common-law doctrine of incompatibility supplements that provision and reaches some dual office holding the Constitution does not. Texas courts and prior Attorney General opinions recognize a "conflicting loyalties" branch of incompatibility, articulated in Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), which found the offices of school trustee and city alderman incompatible because the city body held supervisory powers touching school matters. The automatic-resignation rule, that accepting a second incompatible office vacates the first, comes from Pruitt v. Glen Rose Independent School District, 84 S.W.2d 1004 (Tex. 1935), and Thomas.

Citations

Constitutional provision:

• Tex. Const. art. XVI, § 40

Cases:

• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. 1935)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. JM-203 (1984); JM-1266 (1990); DM-311 (1994); JM-634 (1987); MW-170 (1980)
• Tex. Att'y Gen. LO-96-004; LO-88-049

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0363
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0363.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

April 4, 2001

The Honorable Tom Ramsay
Chair, County Affairs Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0363

Re: Whether an individual may simultaneously hold the offices of mayor and director of a hospital district board that has condemned property in the mayor's city (RQ-0307-JC)

Dear Representative Ramsay:

You have requested our opinion as to whether an individual may simultaneously hold the offices of mayor and director of a hospital district that has condemned property in the mayor's city. For the reasons stated below, we conclude that he may not do so.

The mayor of La Vernia, a municipality in Wilson County, was elected to that position in May, 2000. Prior to that date, he had served as a member of the city council from 1975 through 1982 and again from 1985 until his election as mayor. The same individual was elected to the Wilson County Memorial Hospital District Board (the "Board") in 1987 and has served continuously in that position. He was last elected to president of the Board in 1999 to a term that ends in May, 2001.

(Footnote: Letter from Ms. Susan C. Rocha, La Vernia City Attorney, to Honorable Ignacio Salinas, Jr., Texas State Representative at 2 (Sept. 12, 2000) (on file with Opinion Committee) [hereinafter Rocha Letter].)

Both La Vernia and the Wilson County Hospital District have taxing authority and the power of condemnation. Rocha Letter, supra note 1, at 2. In April, 2000, the Board of the hospital district voted to condemn property, for the purpose of building a clinic within a subdivision of La Vernia. Shortly thereafter, the city council of La Vernia, of which the mayor is a member, enacted a resolution expressing its opposition to the building of the clinic. The city attorney suggests that, based on these facts, the mayor is barred by the common-law doctrine of incompatibility from simultaneously holding the office of hospital district director. Id.

Article XVI, section 40 of the Texas Constitution, which prohibits dual office holding except in certain delineated instances, is applicable only to offices of emolument. Neither the office of mayor of La Vernia nor the office of director of the Wilson County Memorial Hospital District Board is a compensated position. Id. Thus, article XVI, section 40 does not bar the simultaneous holding of these two positions. The common-law doctrine of incompatibility, however, reaches some examples of dual office holding not prohibited by article XVI, section 40. Tex. Att'y Gen. Op. No. JM-203 (1984); Tex. Att'y Gen. LO-96-004. The branch of incompatibility that is applicable to the situation you pose has been denominated "conflicting loyalties." See Tex. Att'y Gen. Op. No. JM-1266 (1990). It was first articulated by a Texas court in Thomas v. Abernathy County Line Independent School District, wherein the court found the offices of school trustee and city alderman to be incompatible. The court found that

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).

This office has frequently found conflicting loyalties incompatibility in situations similar to that of Thomas. See, e.g., Tex. Att'y Gen. Op. Nos. DM-311 (1994) (offices of county commissioner and school trustee are incompatible), JM-634 (1987) (office of school trustee incompatible with that of council member of city located within boundaries of school district); Tex. Att'y Gen. LO-88-049 (one person may not simultaneously hold offices of county commissioner and council member of city located within that county).

The situation you describe presents a veritable textbook case of conflicting loyalties incompatibility. Not only do both the city and the hospital district have taxing and condemnation powers in overlapping geographical jurisdictions, but one of them - the hospital district - has actually condemned property in the other - the city. Furthermore, the governing body of La Vernia has expressed, on the record, its opposition to the condemnation. Rocha Letter, supra note 1, at 2. In such circumstances, it is plain beyond cavil that a single individual may not serve as a member of both governing bodies without running afoul of incompatibility. We conclude therefore that the mayor of La Vernia is barred by the doctrine of common-law incompatibility from simultaneously serving as president of the Wilson County Memorial Hospital District Board of Directors.

It is well established that qualification for and acceptance of a second office operates as an automatic resignation from the first. Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1006 (Tex. 1935); Thomas, 290 S.W. at 153; Tex. Att'y Gen. Op. No. MW-170 (1980). In Pruitt, an individual was appointed to the position of school district tax collector on October 23, 1928, and was elected to the position of county tax collector on November 5, 1928. When he began his term as county tax collector on January 1, 1929, his "term of office as district collector ended automatically." Pruitt, 84 S.W.2d at 1006. On the basis of this principle, when the individual of whom you inquire was elected to and assumed the office of mayor of La Vernia in May, 2000, his term as president of the Board of Directors of the Wilson County Memorial Hospital District was automatically terminated.

SUMMARY

An individual may not simultaneously hold the offices of mayor and director of a hospital district that has condemned property within the mayor's city.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee