Can the same person be both mayor and city manager of a Texas home rule city?

Texas AG Opinion JM-1087: Can a City Charter Let the Mayor Also Be City Manager?

Plain-English summary

The Criminal District Attorney of Hidalgo County asked the Attorney General a structural question about small-city government: can a home rule city write its charter to let one person hold two jobs that normally could not be combined? The specific setup was in the City of Alamo, whose charter said the mayor, with the approval of at least two of the four commissioners, could also serve as city manager (at a salary set by the commissioners, and without drawing mayoral pay while doing so). The same charter made the city manager accountable to the board of commissioners, of which the mayor was a member. On its face, that is exactly the kind of arrangement the common law bars: one person can't hold two positions where one is accountable to the other.

That bar is the common-law doctrine of incompatibility, and without the charter language it would clearly forbid the mayor from also being city manager. The question was whether a home rule city's charter could override it. The Attorney General started from the home rule amendment to the Texas Constitution (article XI, section 5), under which a home rule city has every power that is not inconsistent with the constitution or the general laws of the state. A home rule city does not need the legislature to grant it a specific power; it only has to stay within the limits imposed on it, and any such limit has to appear with unmistakable clarity.

The opinion looked for a statute that might be that clear limit and found only section 5.001 of the Civil Practice and Remedies Code, which makes the English common law the rule of decision in Texas to the extent it is not inconsistent with the state constitution or laws. The Attorney General read that provision not as a command that common-law incompatibility always wins, but as a default that applies only when no other authority says otherwise. Drawing on cases holding that a valid city ordinance passed under constitutional and statutory authority repeals inconsistent common law, the opinion concluded that a charter provision that does not conflict with a specific state law, and does not intrude on a field the legislature has fully occupied, is itself enough to overcome the common law. Alamo's charter specifically provided for the mayor to serve as city manager, spelled out the conditions, and provided for removal. So the charter was sufficient to overcome the incompatibility doctrine, and there was no impediment to the mayor of Alamo holding the city manager position under the charter's terms.

Currency note

This opinion was issued in 1989. 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 home rule doctrine has continued to develop in the Texas courts since 1989, and later attorney general opinions and cases have addressed dual office holding and incompatibility in various contexts. The narrow conclusion here rested on the specific text of one city's charter. Anyone facing a present-day question about combining municipal offices should check current law and the exact charter language rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

Home rule cities and their charter drafters: The opinion meant a home rule city could, by specific charter provision, authorize an arrangement the common law would otherwise forbid, such as one person serving as both mayor and city manager, as long as the charter did not conflict with a specific state law or a field the legislature had fully occupied.

The City of Alamo, its mayor, and its commissioners: The opinion removed the legal cloud over the charter's mayor-as-city-manager option, confirming the mayor could hold both roles under the stated conditions.

Officials weighing dual roles generally: The opinion did not abolish the incompatibility doctrine. It confirmed that, absent a specific charter provision, one person still cannot hold two positions where one is accountable to the other. The result turned on the charter's express authorization.

Common questions

What is the common-law doctrine of incompatibility?
It is the long-standing rule that one person cannot simultaneously hold two positions where one is accountable to or subordinate to the other. Without a charter provision overriding it, it would bar a mayor from also serving as city manager.

How could Alamo's charter get around that rule?
Because Alamo is a home rule city, it holds all powers not inconsistent with the constitution or general law. The Attorney General concluded a specific charter provision that does not conflict with a specific state law can override the common law, and Alamo's charter specifically authorized the mayor to serve as city manager.

Does this mean any city can combine any two offices?
No. The conclusion was limited. It applied to a home rule city with a specific charter provision, and only where the arrangement did not conflict with a specific state law or a field the legislature had fully occupied.

Did the mayor keep drawing mayoral pay while serving as city manager?
No. Under the charter provision quoted in the opinion, if the mayor served as city manager, he or she would not receive compensation for services as mayor, and the city-manager salary was set by the commissioners.

Background and statutory framework

The request concerned the City of Alamo, a home rule city. Its charter (article 1.1, section 5) provided that the mayor, with the approval of at least two of the four commissioners, could serve as city manager at a commissioner-approved salary, and would not receive mayoral compensation while doing so. Article IV, section 1 made the city manager responsible to the board of commissioners and removable by a majority of the board. The charter thus made the city manager accountable to the board, of which the mayor was a member, while also permitting the mayor to serve as city manager.

Absent the charter language, one individual may not serve simultaneously in two positions where one is accountable to the other. Letter Opinion 89-57 (1989); Letter Advisory No. 114 (1975). That conclusion rests on the common-law doctrine of incompatibility. See Thomas v. Abernathy County Line Independent School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). The question was whether a city charter provision could overcome the rule.

Under the home rule amendment, Tex. Const. art. XI, § 5, a home rule city has all powers not inconsistent with the constitution or general laws of the state. Alpha Enterprises, Inc. v. City of Houston, 411 S.W.2d 417 (Tex. Civ. App.), cert. denied, 389 U.S. 1005 (1967). Such a city need not look to the legislature for a particular grant of power; it need only concern itself with limitations on its power, and any limitation must appear with unmistakable clarity. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975); id. at 645.

The only candidate limitation was section 5.001 of the Civil Practice and Remedies Code, which provides that the rule of decision in Texas consists of the portions of the common law of England not inconsistent with the state constitution or laws, together with the state constitution and laws. The opinion concluded this is not really a limitation: it does not make common-law incompatibility the absolute law of the state, but applies only in the absence of other authority to the contrary. A city charter provision that is not contrary to a specific state law, and does not purport to act in a field fully occupied by the legislature, is itself sufficient to overcome the common law.

The opinion drew support from cases on the relationship between local enactments and the common law. In Dallas Ry. & Terminal Co. v. Bankston, 33 S.W.2d 500 (Tex. Civ. App. - Dallas 1930), rev'd on other grounds, 51 S.W.2d 304 (Tex. Comm'n App. 1932), holding approved, ordinances required a streetcar operator to keep a "vigilant watch" and be prepared to stop on any appearance of danger, standards broader than the common-law duty of care. Citing City of Dallas v. Gill, 199 S.W. 1144 (Tex. Civ. App. - Dallas 1917, writ ref'd), the court held that an ordinance passed under constitutional and statutory authority repeals the common law wherever inconsistencies exist. Bankston, supra, at 502; see Woolridge v. Folsom, 564 S.W.2d 471 (Tex. Civ. App. - Dallas 1978, no writ). But cf. Genusa v. City of Houston, 10 S.W.2d 772 (Tex. Civ. App. - Galveston 1928, no writ) (city ordinance imposing liability on the owner of a rental automobile held void as contrary to common law, later questioned in City of Corpus Christi v. Texas Driverless Co., 190 S.W.2d 484 (Tex. 1945)).

Applying that reasoning, the opinion concluded the Alamo charter had specifically provided for one individual to serve simultaneously as mayor and city manager, detailed the conditions for holding both positions, and provided for the mayor's removal as city manager. The charter was therefore sufficient to overcome the common-law doctrine of incompatibility, and there was no impediment to the mayor of Alamo holding the city manager position under the circumstances the charter provided.

Citations

Constitutional and statutory authorities:

• Texas Constitution art. XI, § 5 (home rule amendment)
• Civil Practice and Remedies Code § 5.001 (common law of England as the rule of decision)

Cases:

• Thomas v. Abernathy County Line Independent School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted) (common-law incompatibility)
• Alpha Enterprises, Inc. v. City of Houston, 411 S.W.2d 417 (Tex. Civ. App.), cert. denied, 389 U.S. 1005 (1967) (home rule powers)
• Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975) (limitations on home rule power must be unmistakably clear)
• Dallas Ry. & Terminal Co. v. Bankston, 33 S.W.2d 500 (Tex. Civ. App. - Dallas 1930), rev'd on other grounds, 51 S.W.2d 304 (Tex. Comm'n App. 1932), holding approved (ordinance repeals inconsistent common law)
• City of Dallas v. Gill, 199 S.W. 1144 (Tex. Civ. App. - Dallas 1917, writ ref'd)
• Woolridge v. Folsom, 564 S.W.2d 471 (Tex. Civ. App. - Dallas 1978, no writ)
• Genusa v. City of Houston, 10 S.W.2d 772 (Tex. Civ. App. - Galveston 1928, no writ)
• City of Corpus Christi v. Texas Driverless Co., 190 S.W.2d 484 (Tex. 1945)

Attorney General materials referenced:

• Referenced: Letter Opinion 89-57 (1989); Letter Advisory No. 114 (1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1087
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1087.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. (The scan mis-renders the opinion number on page 1; the running headers correctly show "JM-1087." Several badly garbled case names were confirmed by citation lookup and restored: Thomas v. Abernathy County Line Independent School Dist.; Alpha Enterprises, Inc. v. City of Houston; Lower Colorado River Authority v. City of San Marcos; City of Dallas v. Gill; Woolridge v. Folsom; Genusa v. City of Houston; City of Corpus Christi v. Texas Driverless Co.)

August 23, 1989

Honorable Rene Guerra
Criminal District Attorney
Hidalgo County Courthouse
Edinburg, Texas 78539

Opinion No. JM-1087

Re: Whether the common law doctrine of incompatibility may be overcome by a charter provision of a home rule city which specifically permits such dual office holding (RQ-1675)

Dear Mr. Guerra:

You have requested our opinion as to whether a home rule city may overcome the common law doctrine of incompatibility by means of a provision in its city charter.

The charter of the City of Alamo, a home rule city, provides in pertinent part in article 1.1, section 5:

[T]he Mayor, with the approval of at least two (2) of the four (4) Commissioners, may serve as City Manager at a salary that is set and approved by at least two (2) of the four (4) Commissioners; provided that if he/she is serving as City Manager, he or she will not receive compensation for services as Mayor.

Article IV, section 1, of the charter provides in pertinent part:

The City Manager shall be responsible to the Board of Commissioners for the efficient administration of the affairs of the City of Alamo and shall hold office at the pleasure of the Board of Commissioners. The City Manager may be removed from office by majority vote of all the members of the Board of Commissioners. The action of the Board of Commissioners suspending or removing the City Manager shall be final.

Thus, as you indicate, the charter specifically makes the city manager accountable to the board of commissioners, of which the mayor is a member. On the other hand, the charter also specifically permits "the mayor, with the approval of at least two of the four commissioners," to "serve as" city manager.

Absent the language of the city charter provision, it is abundantly clear that a single individual may not serve simultaneously in two positions in which one is accountable to the other. Letter Opinion 89-57 (1989); Letter Advisory No. 114 (1975). This conclusion is based upon the long-standing common law doctrine of incompatibility. See Thomas v. Abernathy County Line Independent School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). The question here is whether a city charter provision may overcome this common-law rule.

Under the home rule amendment to the Texas Constitution, article XI, section 5, a home rule city has all those powers which are not inconsistent with the constitution or general laws of the state. Alpha Enterprises, Inc. v. City of Houston, 411 S.W.2d 417 (Tex. Civ. App.), cert. denied, 389 U.S. 1005 (1967). A home rule city need not look to the legislature for a particular grant of power. Rather, it need concern itself only with limitations imposed on its power. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975). Furthermore, any limitation thereon must appear with unmistakable clarity. Id. at 645.

The only such "limitation" which might restrict the city's authority in this instance is section 5.001 of the Civil Practices & Remedies Code, which provides:

The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state.

In our opinion, this provision is not really a "limitation." It does not indicate a legislative intent to make common law incompatibility the absolute law in this state, but only in the absence of other authority to the contrary. In this instance, we believe 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.

In Dallas Ry. & Terminal Co. v. Bankston, 33 S.W.2d 500 (Tex. Civ. App. - Dallas 1930), rev'd on other grounds, 51 S.W.2d 304 (Tex. Comm'n App. 1932), holding approved, several ordinances required that a streetcar operator, inter alia, keep a "vigilant watch" and that he be prepared to stop in the shortest time and space possible upon any appearance of danger. The ordinances were somewhat broader than the standard of care required by common law. Nevertheless, the court, citing City of Dallas v. Gill, 199 S.W. 1144 (Tex. Civ. App. - Dallas 1917, writ ref'd), held that if an ordinance is passed under constitutional and statutory authority, it repeals the common law in all respects in which inconsistencies exist. Bankston, supra, at 502; see Woolridge v. Folsom, 564 S.W.2d 471 (Tex. Civ. App. - Dallas 1978, no writ). But cf. Genusa v. City of Houston, 10 S.W.2d 772 (Tex. Civ. App. - Galveston 1928, no writ) (city ordinance imposing liability on owner of a rental automobile void because it contravenes common law, questioned by Supreme Court in City of Corpus Christi v. Texas Driverless Co., 190 S.W.2d 484 (Tex. 1945)).

Likewise, in the situation you pose, the Alamo city charter has specifically provided for the contingency that a single individual may serve simultaneously as both mayor and city manager. The conditions necessary for the holding of both positions are detailed in the charter, as well as provisions for the mayor's removal as city manager. In this instance, we believe that the charter is sufficient to overcome the common law doctrine of incompatibility. As a result, there is no impediment to the mayor of Alamo holding the position of city manager under the circumstances provided in the charter.

SUMMARY

Under the terms of the charter of the City of Alamo, the mayor may, in certain circumstances, simultaneously serve as city manager. The common law doctrine of incompatibility does not prevail over the charter provision.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General