Can a city council member appoint himself to a board the council fills?

Plain-English summary

The City of Watauga set up a crime control and prevention district under chapter 363 of the Local Government Code. That chapter gives a city two ways to fill the district's board of directors: under section 363.1015(a) the council can seat itself, as a body, as the board; or under section 363.1015(b) each member of the council appoints one director, subject to confirmation by the council. Watauga chose the second option in 1996. In practice, the council members had been appointing themselves to the board, and the practice continued for years, until a complaint argued that self-appointment violated the "doctrine of incompatibility." The chair of the House Committee on Urban Affairs asked the Attorney General whether a council member could appoint himself.

The Attorney General said no. Subsection (b), the option Watauga used, does not say a council member may appoint himself, and in the absence of that specific authorization the common-law doctrine of incompatibility controls. Texas courts have long held, going back to Ehlinger v. Clark in 1928, that officials who hold the appointing power are disqualified from appointment to the offices they fill, precisely because it is incompatible to be both the appointer and the appointee. So a Watauga council member, acting under subsection (b), could not name himself a director of the crime control district. The opinion left open the alternative the statute expressly allows: if the council instead seats itself as a body under subsection (a), the members serve as the board through that group mechanism rather than by appointing themselves individually.

Currency note

This opinion was issued in 2002. 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. Chapter 363 of the Local Government Code has been amended since 2002, so confirm the current appointment provisions before relying on this opinion.

What the opinion meant for those who asked

Watauga City Council members (what the opinion held for them): The opinion concluded that, having chosen the subsection (b) method of filling the crime control district board, individual council members could not appoint themselves as directors. The common-law incompatibility doctrine barred a person who holds the appointing power from appointing himself.

The crime control and prevention district (what the opinion held for it): The opinion treated the long-running practice of self-appointed council members on the board as unauthorized under the method the city had adopted, unless the council instead seated itself as a body under subsection (a).

Other Texas cities with appointment authority (what the opinion describes): The opinion restated a principle it had applied many times: a governing body that fills a board generally cannot place its own members in those seats by self-appointment, absent specific statutory authorization to do so.

Common questions

Can a Texas city council member put himself on a board the council appoints?
Under this opinion, no, not by self-appointment under section 363.1015(b). The common-law doctrine of incompatibility disqualifies the appointer from being the appointee.

Is there any way for council members to serve on the crime control district board?
Yes. The opinion noted that section 363.1015(a) lets the council seat itself, as a body, as the board of directors. That is a different mechanism from individual members appointing themselves.

What is the "doctrine of incompatibility" here?
The opinion described it as the rule, stated in Ehlinger v. Clark, that officials who hold the appointing power are disqualified from appointment to the offices they may fill, because it is incompatible to be both the appointing authority and the appointee.

Did the years of past self-appointments make the practice legal?
The opinion did not treat the long practice as curing the problem. It concluded the doctrine of incompatibility controlled the situation regardless of how long the self-appointments had continued.

Background and statutory framework

Crime control and prevention districts are authorized by chapter 363 of the Local Government Code, and may be proposed in a municipality partially or wholly located in a county with a population over 5,000. Tex. Loc. Gov't Code Ann. § 363.051(a) (Vernon Supp. 2002). Section 363.1015 sets out two methods for the board: under subsection (a) the governing body may by resolution appoint its own membership as the board; under subsection (b), used where the board is not appointed under (a), each member of the governing body appoints one director, subject to confirmation. Tex. Loc. Gov't Code Ann. § 363.1015 (Vernon Supp. 2002). The Watauga City Council adopted the subsection (b) procedure.

Because subsection (b) does not specifically authorize a member to appoint himself, the opinion applied common-law incompatibility. The Texas Supreme Court in Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928), held that "all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint." The opinion noted that many later Attorney General opinions had applied the same principle, including a 2000 opinion concluding the City of San Antonio could not adopt an ordinance letting a council member be appointed to the Greater Kelly Development Authority board. Applying Ehlinger, the opinion concluded that a Watauga council member acting under subsection (b) may not appoint himself a director of the crime control and prevention district.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. § 363.051(a) (Vernon Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 363.1015 (Vernon Supp. 2002)

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0474
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0474.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

March 7, 2002

The Honorable Bill Carter
Chair, House Committee on Urban Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0474

Re: Whether a member of the City Council of the City of Watauga may appoint himself to the Board of Directors of the Watauga Crime Control and Prevention District (RQ-0452-JC)

Dear Representative Carter:

You have requested our opinion as to whether a member of the City Council of the City of Watauga may appoint himself to the Board of Directors of the Watauga Crime Control and Prevention District. For the reasons set forth below, we conclude that he may not do so.

Crime control and prevention districts are authorized by chapter 363 of the Local Government Code. A crime control and prevention district "may be proposed," inter alia, in a municipality "that is partially or wholly located in a county with a population of more than 5,000." TEX. LOC. GOV'T CODE ANN. § 363.051(a) (Vernon Supp. 2002). The City of Watauga is located in Tarrant County, which has a population of more than 5,000. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION, available at http://www.census.gov/ (Tarrant County population is 1,446,219). We have been informed that the Watauga Crime Control and Prevention District (the "WCCD") was created by the City Council of the City of Watauga in 1996.[1] Section 363.1015 provides:

(a) The governing body of a municipality or county by resolution may appoint the governing body's membership as the board of directors of the district.

(b) In a district for which the board is not appointed under Subsection (a), the governing body of the municipality or county may create a board by having each member of the governing body appoint one director to the board, subject to confirmation by the governing body.

(c) A director appointed under Subsection (b) serves:

    (1) at the pleasure of the governing body of the municipality or county; and

    (2) for a term concurrent with the term of the appointing member.

TEX. LOC. GOV'T CODE ANN. § 363.1015 (Vernon Supp. 2002).

A letter from the City Attorney for the City of Watauga indicates that, "[t]he Watauga City Council explored the idea of invoking the provision of L.G.C. § 363.1015(a) which allows the governing body to serve as the Board for the WCCD but instead opted under L.G.C. § 363.1015(b) to allow members of the City Council to appoint individuals to serve." Daniel Brief, supra note 1, at 1. Furthermore, since 1996, the WCCD board "has consisted of members of the City Council who have appointed themselves to the board. Two City Councilmen were defeated in the general election this past May and declined to relinquish their positions on the Board following a request to do so by members of the incumbent City Council." Id. Recently, an incumbent city council member "sought to appoint himself (as was done for more than five (5) years) which resulted in a complaint that such action is violative of the 'doctrine of incompatibility.'" Id.

Subsection (a) of section 363.1015 permits the governing body of a municipality to appoint its membership as a group "as the board of directors of the district." The City Council of Watauga, however, opted to avail itself of subsection (b). You indicate that a resolution of the City Council dated July 23, 2001 "adopted the procedures under Section 363.1015(b) of appointing members to the Crime Control and Prevention District."[2] Subsection (b) does not specifically permit a member of a local governing body to appoint himself to the board of directors of a crime control and prevention district. In the absence of such specific authorization, common-law incompatibility prevails.

In Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928), the Texas Supreme Court declared:

It is because of the obvious incompatibility of being both a member of a body making the appointment and an appointee of that body that the courts have with great unanimity throughout the country declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint.

Id. at 674. Many subsequent attorney general opinions have applied this principle. See, e.g., Tex. Att'y Gen. Op. Nos. JM-934 (1988) (members of school district board of trustees may not appoint themselves to governing board of a community college district); JM-386 (1985) (city council may not appoint one of its members to the city's police reserve); Tex. Att'y Gen. LO-93-070 (governing body of entity authorized to make appointments to board of directors of Edwards Aquifer Authority may not appoint one of its own members to that position); LO-92-008 (board of trustees of community college district may not appoint one of its own members to the position of interim chancellor). More recently, we said that the City of San Antonio lacked the authority to adopt an ordinance providing that a member of the city council could be appointed to the Board of Directors of the Greater Kelly Development Authority. Tex. Att'y Gen. Op. No. JC-0225 (2000).

We believe it is clear that the principle of Ehlinger v. Clark controls the situation you pose and that, as a result, a member of the Watauga City Council that appoints directors to the Watauga Crime Control and Prevention District may not appoint himself as a director of that district.

SUMMARY

Unless the City Council of the City of Watauga appoints itself as a body to the Watauga Crime Control and Prevention District, members of the City Council are prohibited by the common-law doctrine of incompatibility from appointing themselves as directors of the Watauga Crime Control and Prevention District.

Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Mark G. Daniel, City Attorney, City of Watauga, to Honorable John Cornyn, Texas Attorney General (Oct. 25, 2001) (on file with Opinion Committee) [hereinafter Daniel Brief].

[2] Letter from Honorable Bill Carter, Chair, House Committee on Urban Affairs, to Honorable John Cornyn, Texas Attorney General (Oct. 12, 2001) (on file with Opinion Committee).