Can a suspended school board trustee run for and serve on a city council in the same district?

Plain-English summary

Bob Wortham, the Jefferson County Criminal District Attorney, asked the Attorney General a tangled question about two offices and one person. In 2014, the Texas Education Commissioner installed a seven-member board of managers over the Beaumont Independent School District. Under chapter 39 of the Education Code, that appointment suspends the elected board of trustees and hands all of their powers to the board of managers for the length of the appointment. In early 2015, the suspended president of the trustees filed to run for the Beaumont City Council.

Everyone agreed the two offices, school trustee and city council member of a city inside the district, are incompatible and cannot be held by the same person at once. The wrinkle was the Texas Constitution's "holdover" provision, article XVI, section 17, which says officers keep performing their duties until a successor qualifies. The district attorney worried that because the board of managers did not plan to call a trustee election until 2017 and was not expected to appoint a replacement, the board president could not resign and would be stuck holding over as a trustee, which would make it illegal for her to run for or serve on the council.

The AG worked through the holdover rule and concluded it did not trap her. Texas courts have long held that when an officer qualifies for a second office that is incompatible with the first, the first office is vacated by operation of law, and in that situation the holdover provision simply does not apply. So if the board president wins the council seat, the moment she qualifies for it she vacates the trustee office automatically; she does not hold over. The AG added that this result does not defeat the purpose of the holdover rule, which is to keep public business running despite a vacancy, because the board of managers, not the trustees, is actually running the district.

The AG also explained that the incompatibility does not stop her from running in the first place. Eligibility for office is about the qualification to hold the office, not the qualification to be elected. Where a disqualification will end automatically and outside the candidate's control, the person only needs to be qualified when she assumes the office. Because she vacates the trustee office by operation of law the instant she qualifies for the council, she will be qualified when she takes the council seat. So the AG concluded a suspended trustee may both run for and serve as a city council member for a city within the district.

Currency note

This opinion was issued in 2015. 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 suspended trustee and others in her position (as the opinion described it): The opinion described a school trustee whose powers were suspended by a board of managers as free to run for and serve on a city council within the district. It explained that winning and qualifying for the council seat would vacate the trustee office by operation of law, so she would not be forced to hold over.

Election officials and candidates checking eligibility (as the opinion described it): The opinion described eligibility as turning on the qualification to hold office, not to be elected, and described a candidate as needing to be qualified at the time she assumes the office, which she would be once she vacated the incompatible office automatically.

School districts under a board of managers (as the opinion described it): The opinion described the board of managers as holding all the powers and duties of the trustees during the appointment, and used that fact to explain why one suspended trustee's departure would not harm the public interest the holdover rule protects.

County and district attorneys advising on these questions (as the opinion described it): The opinion laid out the interplay between the holdover provision and the incompatibility rule, concluding the holdover provision yields when an officer qualifies for an incompatible office, whether the incompatibility comes from the constitution or the common law.

Common questions

Can a suspended school board trustee run for city council in the same area?
The AG said yes. Even though the two offices are incompatible, the incompatibility does not bar her from running, because eligibility is about qualification to hold the office, and she would be qualified when she takes the council seat.

Doesn't the constitution make officers "hold over" until a successor is found?
Yes, article XVI, section 17 generally does. But the AG explained that courts have held the holdover rule does not apply when an officer qualifies for a second, incompatible office, which vacates the first office by operation of law.

What happens to the trustee seat if she wins?
The AG said she vacates the trustee office automatically the moment she qualifies for the city council seat. She does not continue as a trustee.

Why doesn't her leaving cause the problem the holdover rule guards against?
The AG explained that the board of managers, not the suspended trustees, was actually running the Beaumont ISD, so her departure would not leave the district's business unattended.

Does it matter that the incompatibility might come from the common law instead of the constitution?
The AG said no. It cited cases showing the office is vacated immediately whether the incompatibility comes from the constitution or the common law.

Background and statutory framework

The Texas Education Commissioner may appoint a board of managers over a school district under chapter 39 of the Education Code, which suspends the elected board of trustees and grants the board of managers all of the trustees' powers and duties for the period of the appointment; if the appointment ends, the suspended trustees resume their positions (Tex. Educ. Code Ann. § 39.102(a)(9); § 39.112(a)-(b)). The offices of school district trustee and city council member of a city within the district are incompatible and cannot be held at once (Tex. Att'y Gen. Op. No. JM-634 (1987)).

The Texas Constitution's holdover provision requires officers to keep performing their duties until their successors are duly qualified, to prevent public inconvenience from a vacancy (Tex. Const. art. XVI, § 17; Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex. App.-San Antonio 2003, pet. denied); Tex. Att'y Gen. Op. Nos. M-659 (1970), GA-0550 (2007)). But Texas courts have held that when an officer qualifies for a second, incompatible office, the first office is vacated by operation of law and the holdover provision does not apply, whether the incompatibility arises from the constitution's bar on holding two offices of emolument or from the common law (State ex rel. Peden v. Valentine, 198 S.W. 1006, 1007 (Tex. Civ. App.-Fort Worth 1917, writ ref'd); Biencourt v. Parker, 27 Tex. 558, 562 (1864); Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1007 (Tex. 1935); Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); Tex. Att'y Gen. Op. Nos. JM-589 (1986), M-627 (1970), GA-0015 (2003)). The AG reasoned that the board president would therefore vacate her trustee office the instant she qualified for the council, without holding over, and that this would not harm the holdover provision's purpose because the board of managers was running the district.

The AG also explained that incompatibility does not bar a person from running. Eligibility refers to the qualification to hold office, not to be elected, and where the disqualification will end outside the candidate's control, the person need only be qualified when she assumes the office (Rose v. White, 536 S.W.2d 395, 397 (Tex. Civ. App.-Dallas 1976, orig. proceeding); Kothmann v. Daniels, 397 S.W.2d 940, 942 (Tex. Civ. App.-San Antonio 1965, orig. proceeding)). Because she would vacate the trustee office by operation of law upon qualifying for the council, she would be qualified when she assumed the council office, so the incompatibility did not make her ineligible to run.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 17 (holdover provision)
• Tex. Educ. Code Ann. § 39.102(a)(9) (appointment of a board of managers)
• Tex. Educ. Code Ann. § 39.112(a)-(b) (suspension of trustees; powers of the board of managers)
• Tex. Educ. Code Ann. § 11.060(a) (filling a board vacancy by appointment)

Cases:

• Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex. App.-San Antonio 2003, pet. denied)
• State ex rel. Peden v. Valentine, 198 S.W. 1006, 1007 (Tex. Civ. App.-Fort Worth 1917, writ ref'd)
• Biencourt v. Parker, 27 Tex. 558, 562 (1864)
• Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1007 (Tex. 1935)
• Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)
• Rose v. White, 536 S.W.2d 395, 397 (Tex. Civ. App.-Dallas 1976, orig. proceeding)
• Kothmann v. Daniels, 397 S.W.2d 940, 942 (Tex. Civ. App.-San Antonio 1965, orig. proceeding)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. JM-634 (1987), M-659 (1970), GA-0550 (2007), JM-589 (1986), M-627 (1970), GA-0015 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0014
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0014.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 29, 2015

The Honorable Bob Wortham Opinion No. KP-0014
Jefferson County Criminal District Attorney
Jefferson County Courthouse Re: Whether a school board trustee, whose
1085 Pearl Street, 3rd Floor powers have been suspended by the Texas
Beaumont, Texas 77701 Education Commissioner under chapter 39 of
the Education Code, may run and serve as a
city council member for a city located within
the school district's boundaries (RQ-0007-KP)

Dear Mr. Wortham:

You ask whether a current elected school board trustee whose powers have been suspended due to the installation of a board of managers under chapter 39 of the Education Code may run for or serve in a city council position for a city located within the boundaries of the school district. [1] You inform us that in 2014 the Texas Education Commissioner installed a seven-member board of managers over the Beaumont Independent School District. Request Letter at 1; see TEX. EDUC. CODE ANN. § 39.102(a)(9) (West 2012) (authorizing the Texas Education Commissioner to appoint a board of managers). Such an appointment suspends the powers of the elected board of trustees and grants to the board of managers "all of the powers and duties assigned to a board of trustees of a school district by law, rule or regulation." TEX. EDUC. CODE ANN. § 39.112(a)-(b) (West 2012). In the event the Texas Education Commissioner dissolves or terminates the appointment of the board of managers, the suspended board of trustees would resume their positions. See id. § 39.112(b) (suspending the board of trustee's powers "for the period of the appointment").

You state that in early 2015, the suspended president of the trustees ("board president") filed to run for a position on the Beaumont City Council in the May 2015 election. See Request Letter at 1. You acknowledge that the positions of school district trustee and city council member are incompatible and may not be held simultaneously by the same person. See id. at 2; see also Tex. Att'y Gen. Op. No. JM-634 (1987) at 3 (concluding that the offices of school board trustee and city council member of a town located in boundaries of the school district are incompatible). You note that the board of managers does not intend to call an election until 2017, and you do not believe it likely that they would appoint any replacement trustee. See Request Letter at 2 n.4, 3. Citing the constitutional holdover provision in article XVI, section 17, you suggest that the board president is unable to voluntarily resign because she would be required to holdover beyond the May 2015 election due to the lack of any appointed or elected successor. Id. at 2-3 ("It would appear that [she] finds herself in the rather unique position of being unable to voluntarily resign until her successor is either appointed or elected."). You therefore question the legality of the board president being a candidate for and serving as a city council member. See id. at 3.

We begin our analysis of your question with article XVI, section 17, of the Texas Constitution, which provides that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. It is a mandatory provision, the purpose of which is "to prevent public convenience from suffering because of a vacancy in the office." Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex. App.-San Antonio 2003, pet. denied) (quotation marks omitted); see also Tex. Att'y Gen. Op. No. M-659 (1970) at 2-3 (noting that resignation of an officer is not deemed fully effective until the appointment and qualification of his or her successor). Under article XVI, section 17, a resigning officer typically holds over until his successor qualifies for office and possesses all the authority to act in his official capacity. See Tex. Att'y Gen. Op. No. GA-0550 (2007) at 4.

Yet, despite the mandatory nature of the holdover provision, Texas courts have consistently determined that the holdover provision does not apply in some circumstances to force an officer's continued service. In State ex rel. Peden v. Valentine, which involved the holding of two incompatible offices, the court of appeals acknowledged that "the acceptance of, and qualification for, the second [incompatible] office creates a vacancy in the first." State ex rel. Peden v. Valentine, 198 S.W. 1006, 1007 (Tex. Civ. App.-Fort Worth 1917, writ ref'd); see also Biencourt v. Parker, 27 Tex. 558, 562 (1864) (determining that being appointed to and accepting a new office incompatible with the original one causes an absolute termination of the original office, and "leaves no shadow of title to the possessor"). The incompatibility of the two offices in Peden resulted from the constitutional prohibition against one person holding two offices of emolument. See Peden, 198 S.W. at 1007. As between the prohibition against holding two offices and the requirement that an officer hold over in a position until his or her successor is qualified, the Peden court determined that "when the Constitution forbids the holding of both offices, it must be held that [article XVI, section 17], requiring continued performance of official duty, is without application." Id. The Texas Supreme Court subsequently reached the same conclusion in a case involving the same two constitutional provisions. See Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. 1935). The court in Pruitt recognized that when an officer accepts and qualifies for a second office, the officer vacates the first office as a matter of law and "[i]n such circumstances the constitutional provision that all officers shall continue to perform the duties of their offices until a successor has been qualified does not apply." Id. at 1007 (quotation marks omitted).

Immediate vacation of office without holding over also occurs when the incompatibility of office derives not from the constitution but from the common law. See Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (determining that offices of school trustee and city alderman are incompatible and that an officer vacated the office of school trustee immediately upon qualifying for the office of alderman). This office has noted on several occasions that "an officer ... may divest himself of an office before his successor has qualified by himself qualifying for and entering upon the duties of another office which he cannot lawfully hold at the same time." Tex. Att'y Gen. Op. Nos. JM-589 (1986) at 2, M-627 (1970) at 4; see also GA-0015 (2003) at 5 ("The first office is vacant by operation of law as of the moment the officeholder qualifies for the second office."). Thus, in the event the board president wins the city council position, the moment she qualifies for that position, she vacates her trustee position and does not holdover despite article XVI, section 17. And in this instance, such a result does not impinge upon the purpose of the holdover provision because the board of managers, not the board of trustees, is in control of the operations of the school board. [2]

Moreover, the incompatibility of the two offices does not preclude the board president from running for city council. Texas courts have consistently said that eligibility in connection with qualifications for office refers to the "qualification to hold office, rather than the qualification to be elected to office." Rose v. White, 536 S.W.2d 395, 397 (Tex. Civ. App.-Dallas 1976, orig. proceeding). In other words, where any disqualification is of such a nature that its continuation or termination is not within the control of the person seeking the office, a person must be qualified to hold office at "the time when he assumes the duties of the office." Kothmann v. Daniels, 397 S.W.2d 940, 942 (Tex. Civ. App.-San Antonio 1965, orig. proceeding). Here, in the event the board president wins her city council election, she vacates her first office of trustee immediately upon qualifying for the office of city council by operation of law such that the termination of the disqualification is not within her control. Thus, she is qualified at the time that she assumes the duties of office. Under Rose and Kothmann, the incompatibility of the two offices does not make her ineligible to run for city council.

For these reasons, a school board trustee whose powers have been suspended by the Texas Education Commissioner under chapter 39 of the Education Code may run for and serve as a city council member for a city located within the school district's boundaries.

SUMMARY

A school board trustee whose powers have been suspended by the Texas Education Commissioner under chapter 39 of the Education Code may run for and serve as a city council member for a city located within the school district's boundaries.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Bob Wortham, Jefferson Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 29, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Though you indicate that the board of managers does not intend to appoint a replacement, the Education Code gives it full authority to do so. See TEX. EDUC. CODE ANN. §§ 39.112(a) (West 2012) (providing that a board of managers may exercise all of the powers and duties assigned to a board of trustees by law, rule, or regulation), 11.060(a) (authorizing a board of trustees of an independent school district to fill a vacancy on the board by appointment until the next election).