Could one person serve at the same time on the Texas higher-education Coordinating Board and a junior college board?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-97: Coordinating Board and Junior College Dual Service
Plain-English summary
JM-97 concluded that one person could not serve simultaneously on the Coordinating Board of the Texas College and University System and a junior college board. Accepting a position on one board relinquished membership on the other.
"An individual may not serve simultaneously as a member of the Coordinating Board of the Texas College and University System and a Junior College Board. Upon acceptance of a position on one of the boards, membership on the other board is relinquished."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
The offices were incompatible because the statewide Coordinating Board directly supervised important parts of junior-college administration. The Tarrant County Junior College Board therefore was subordinate to the Coordinating Board in important duties.
"In our opinion, the Tarrant County Junior College Board is subordinate to the Coordinating Board of the Texas College and University System 'in some of its important and principal duties.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf"[S]ubsections (c), (d), and (e) of section 61.051 clearly empower the Coordinating Board of the Texas College and University System to directly supervise critical aspects of the administration of a junior college such as Tarrant County Junior College."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Applied to the named officials, JM-97 concluded that Dr. Gwendolyn Morrison relinquished her Coordinating Board position when she began a second term on the junior college board, leaving a vacancy that Governor Mark White filled by appointing George Bramblett.
"We conclude that Dr. Morrison relinquished her position on the Coordinating Board of the Texas College and University System when she began her second term on the Tarrant County Junior College Board and that Mr. Bramblett is the proper holder of the position vacated by Dr. Morrison."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Currency note
This opinion was issued in 1983. 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.
Common questions
What test did JM-97 use for incompatible offices?
The opinion quoted the test that incompatibility exists when one office is subordinate to or supervised by the other, or when one person's performance of both roles would create conflicting duties.
"One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would result in the attempt by one person to discharge the duties of both."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
How did the Coordinating Board supervise junior colleges?
Section 61.051 made it the state's highest authority for public higher education, authorized it to define junior colleges, prescribe each institution's role and scope, and approve, consolidate, or eliminate degree and certificate programs.
"The board shall represent the highest authority in the state in matters of public higher education."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf"The board shall classify and prescribe the role and scope for each public institution of higher education in Texas [and] shall make such changes in classification or role and scope of each institution as it deems necessary."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf"No new department, school, degree program, or certificate program may be added at any institution of higher education except with specific prior approval of the board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
What happened when a person accepted a second incompatible office?
Under the common-law vacation doctrine quoted in JM-97, accepting and qualifying for the incompatible second office automatically relinquished the first.
"Persons who accept and qualify for offices that are incompatible with offices they already hold ipso facto relinquish their prior posts."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Which position did Dr. Morrison relinquish first?
JM-97 said she first relinquished her junior college board position by accepting the statewide appointment, then relinquished the statewide position when she accepted a second junior college term.
"[I]n October 1976 Dr. Morrison began a term on the Tarrant County Junior College Board; she relinquished this position when she accepted Governor Clements' appointment to the Coordinating Board of the Texas College and University System; she then relinquished her post on the Coordinating Board of the Texas College and University System when she accepted her second term on the Tarrant County Junior College Board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Background and legal framework
The request asked whether Dr. Morrison or Mr. Bramblett was the proper holder of one Coordinating Board seat. Dr. Morrison had been appointed to the statewide board while serving on the Tarrant County Junior College Board and later won another junior college term.
"You have asked us to determine who is the proper holder of one of the positions on the Coordinating Board of the Texas College and University System, Dr. Gwendolyn Morrison or Mr. George Bramblett."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf"In April 1982, Dr. Morrison was re-elected to her position on the Tarrant County Junior College Board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Governor White appointed Mr. Bramblett on October 6, 1983, based on the view that Dr. Morrison could not serve both boards at once.
"Contending that Dr. Morrison could not serve concurrent terms on the two boards, Governor Mark White appointed Mr. George Bramblett to the Coordinating Board of the Texas College and University System to replace Dr. Morrison on October 6, 1983."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Holding
"An individual may not serve simultaneously as a member of the Coordinating Board of the Texas College and University System and a Junior College Board. Upon acceptance of a position on one of the boards, membership on the other board is relinquished."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0097
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0097.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
December 5, 1983
Mr. Larry Temple
Chairman
Coordinating Board
Texas College and University System
P. O. Box 12788, Capitol Station
Austin, Texas 78711
Opinion No. JM-97
Re: Whether an individual may serve simultaneously as a member of the Coordinating Board and a Junior College Board
Dear Mr. Temple:
You have asked us to determine who is the proper holder of one of the positions on the Coordinating Board of the Texas College and University System, Dr. Gwendolyn Morrison or Mr. George Bramblett. You inform us that Governor Clements appointed Dr. Morrison to the Coordinating Board of the Texas College and University System in October, 1979 for a term to expire in August, 1985. At the time of her appointment to the Coordinating Board of the Texas College and University System Dr. Morrison was serving a six-year term on the Tarrant County Junior College Board to which she was elected in April, 1976. Against the advice of Governor Clements' legal staff, Dr. Morrison continued to serve on the Tarrant County Junior College Board after her appointment to the Coordinating Board of the Texas College and University System. In April 1982, Dr. Morrison was re-elected to her position on the Tarrant County Junior College Board. Contending that Dr. Morrison could not serve concurrent terms on the two boards, Governor Mark White appointed Mr. George Bramblett to the Coordinating Board of the Texas College and University System to replace Dr. Morrison on October 6, 1983.
Dr. Morrison insists that she can continue to serve on both boards and that Governor White's appointment of Mr. Bramblett was invalid. We disagree with Dr. Morrison. We conclude that Dr. Morrison relinquished her position on the Coordinating Board of the Texas College and University System when she began her second term on the Tarrant County Junior College Board and that Mr. Bramblett is the proper holder of the position vacated by Dr. Morrison.
Texas law provides that one person may not hold two civil offices which are incompatible. Attorney General Opinion O-3308 (1941). This office has determined incompatibility on a case-by-case basis. See Attorney General Opinions M-842 (1971) (offices of domestic relations judge and member of board of directors of Texas Southern University are compatible); V-63 (1947) (offices of county commissioner and trustee of independent school district are compatible); O-5145 (1943) (offices of county commissioner and trustee of a rural high school district are incompatible).
Attorney General Opinion V-63 set forth the following test for determining whether two offices should be considered incompatible:
One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would result in the attempt by one person to discharge the duties of both. Under this principle two offices are incompatible where the incumbent of one has the power . . . of appointment as to the other office, or to audit the accounts of another, or to exercise a supervision over another.
Attorney General Opinion V-63 (citing Knuckles v. Board of Education of Bell County, 114 S.W.2d 511 (Ky. 1938)).
We conclude that positions on the Coordinating Board of the Texas College and University System and the Tarrant County Junior College Board are incompatible. Section 61.051 of the Education Code defines the role of the Coordinating Board of the Texas College and University System:
(a) The board shall represent the highest authority in the state in matters of public higher education.
(b) The board shall define a junior college, a senior college, a university, and a university system; provided, that nothing in this section may be construed to authorize the board to establish or create any university system or to alter any university system presently existing by virtue of statute or the constitution of this state.
(c) The board shall develop and publish criteria to be used as a basis for determining the need for changing the classification of any public institution of higher education and for determining the need for new public junior colleges, public senior colleges, universities, or university systems.
(d) The board shall classify and prescribe the role and scope for each public institution of higher education in Texas, shall make such changes in classification or role and scope of each institution as it deems necessary, and shall hear applications from the institutions for changes in classification or role and scope. The board shall make recommendation to the legislature with respect to maximum enrollment limits for each public institution of higher education in the State of Texas and may recommend to the legislature maximum enrollment limits for any department, school, degree program, or certificate program at any such institution.
(e) The board shall review periodically all degree and certificate programs offered by the institutions of higher education to assure that they meet the present and future needs of the state. The board shall also order the initiation, consolidation, or elimination of degree or certificate programs where that action is in the best interest of the institutions themselves or the general requirements of the State of Texas, or when that action offers hope of achieving excellence by a concentration of available resources. No new department, school, degree program, or certificate program may be added at any institution of higher education except with specific prior approval of the board. Once approved, no department, school, degree program, or certificate program at any institution of higher education may be expanded to include subject matter courses that are outside of approved degree and certificate programs except with specific prior approval of the board. (Emphasis added).
In our opinion, the Tarrant County Junior College Board is subordinate to the Coordinating Board of the Texas College and University System "in some of its important and principal duties." The Coordinating Board of the Texas College and University System "defines a junior college," and subsections (c), (d), and (e) of section 61.051 clearly empower the Coordinating Board of the Texas College and University System to directly supervise critical aspects of the administration of a junior college such as Tarrant County Junior College. In our opinion, it would be improper for Dr. Morrison to serve concurrent terms on the Coordinating Board of the Texas College and University System and the Tarrant County Junior College Board.
The incompatibility of these two offices invites application of the common law doctrine of vacation:
Persons who accept and qualify for offices that are incompatible with offices they already hold ipso facto relinquish their prior posts.
Attorney General Opinion MW-170 (1980). See Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ. App. - San Antonio 1961, no writ); Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.); Attorney General Opinions MW-170 (1980); H-155, H-117 (1973).
Accordingly, we have determined that Dr. Morrison's career in public office has progressed as follows: in October 1976 Dr. Morrison began a term on the Tarrant County Junior College Board; she relinquished this position when she accepted Governor Clements' appointment to the Coordinating Board of the Texas College and University System; she then relinquished her post on the Coordinating Board of the Texas College and University System when she accepted her second term on the Tarrant County Junior College Board. This left her position on the Coordinating Board of the Texas College and University System vacant.
We conclude that Mr. George Bramblett is the proper holder of the position on the Coordinating Board of the Texas College and University System.
SUMMARY
An individual may not serve simultaneously as a member of the Coordinating Board of the Texas College and University System and a Junior College Board. Upon acceptance of a position on one of the boards, membership on the other board is relinquished.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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