Can the same person serve on a Texas school board and a hospital district board at the same time?

Plain-English summary

Rene Pena, the district attorney for the 81st Judicial District, asked the Attorney General a common local-government question: can one person sit on a school district's board of trustees and a county hospital district's board at the same time, when the two districts cover overlapping ground? The specific pair was the La Vernia Independent School District and the Wilson County Memorial Hospital District, both centered in Wilson County.

The AG worked through two separate bars on holding two offices. The first is constitutional: article XVI, section 40 of the Texas Constitution stops a person from holding more than one "office of emolument," meaning a paid office. That bar did not apply here, because trustees of both the school district and the hospital district serve without pay, so neither is an office of emolument.

The second bar is the common-law doctrine of incompatibility, which has three branches: self-appointment, self-employment, and conflicting loyalties. Neither board appoints or employs the other, so the AG focused on conflicting loyalties. Under that branch, the question is whether holding both offices is detrimental to the public interest or whether the duties of one interfere with the other. The AG applied a rule its office had used many times: when two districts have overlapping geographic boundaries and both have the power to tax, the potential for conflict is "insurmountable," because each district wants to maximize its own tax revenue and a single official would be serving two competing masters. The La Vernia ISD levies ad valorem taxes, and the Wilson County Memorial Hospital District levies ad valorem taxes on overlapping property. So the AG concluded the two offices are incompatible and one person cannot hold both at once.

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

School district trustees (as the opinion described it): The opinion described a sitting school board trustee as barred from simultaneously serving on the board of an overlapping hospital district that also has taxing power. It tied the bar to the overlapping taxing authority, not to pay, since the trustee position is unpaid.

Hospital district board members (as the opinion described it): The opinion applied the same conclusion in reverse. A hospital district trustee could not also serve on the overlapping school district's board, because both districts tax the same territory.

Anyone weighing the two roles together (as the opinion described it): The opinion described the conflict as arising from "conflicting-loyalties" incompatibility, a common-law doctrine, rather than from the constitutional ban on holding two paid offices. It described the constitutional ban (article XVI, section 40) as inapplicable because neither office carries compensation.

District attorneys and officials checking eligibility (as the opinion described it): The opinion laid out the test it used: whether the two entities have overlapping jurisdiction and whether both have taxing power. Where both are true, the opinion described the resulting conflict as one its office had consistently called "insurmountable."

Common questions

Can one person serve on a Texas school board and a hospital district board at the same time?
The AG said no where the two districts overlap geographically and both can levy taxes. In that situation, the common-law doctrine of conflicting-loyalties incompatibility bars holding both offices.

Isn't the rule about not holding two paid offices?
That is a separate rule. The Texas Constitution's article XVI, section 40 bars holding two "offices of emolument," meaning paid offices. The AG said that rule did not apply here because both trustee positions are unpaid. The bar in this opinion came from the common-law incompatibility doctrine instead.

Why does overlapping territory matter so much?
The AG explained that when two districts cover the same ground and both tax, their interests collide: each wants to maximize its own revenue from the same property. A person on both boards would be pulled between "two separate and competing masters," which the opinion described as an insurmountable conflict.

What is the conflicting-loyalties branch of incompatibility?
The AG described incompatibility as a common-law doctrine with three branches: self-appointment, self-employment, and conflicting loyalties. The first two did not fit because neither board appoints or employs the other. Conflicting loyalties asks whether serving in both offices harms the public interest or whether the duties interfere with each other.

Does this mean a trustee has to give up one position?
The opinion addressed eligibility to hold both offices at once and concluded a person may not serve on both boards simultaneously. It did not lay out a resignation procedure; it answered that simultaneous service is prohibited. Because this opinion is from 2015, verify current law before acting on it.

Background and statutory framework

The Texas Constitution's article XVI, section 40 bars one person from holding more than one "office of emolument," with exceptions not relevant here (Tex. Const. art. XVI, § 40). The AG noted that an emolument is compensation paid to the officer and does not include reimbursement of actual expenses, and that both trustee positions are uncompensated (Tex. Educ. Code Ann. § 11.061(d); Tex. Spec. Dist. Code Ann. § 1115.057). So the constitutional bar did not apply.

The AG then turned to the common-law doctrine of incompatibility and its three branches: self-appointment, self-employment, and conflicting loyalties. Self-appointment incompatibility traces to the Texas Supreme Court's rule that officers with the power to appoint are disqualified from the offices to which they may appoint (Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)). Self-employment incompatibility turns on supervision. Because neither board appoints or employs the other, the AG analyzed only conflicting loyalties, a doctrine first announced when a Texas court held the offices of school trustee and city alderman incompatible (Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)). The governing question is whether holding both offices is detrimental to the public interest or whether the duties of one interfere with the other (State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994)).

The AG applied its longstanding rule that overlapping districts with separate taxing power create an insurmountable conflict, because each district seeks to maximize its own revenue. The La Vernia Independent School District levies and collects ad valorem taxes (Tex. Educ. Code Ann. § 11.152; §§ 11.1511(c)(1)-(2), 45.001(a)(2)), and the Wilson County Memorial Hospital District imposes ad valorem taxes on overlapping property (Tex. Spec. Dist. Code Ann. § 1115.251(a)). With overlapping territory and taxing authority on both sides, the AG concluded the two offices are incompatible and one person may not hold both at once.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40 (bar on holding more than one office of emolument)
• Tex. Educ. Code Ann. § 11.061(d) (school district trustee serves without compensation)
• Tex. Educ. Code Ann. § 11.152; §§ 11.1511(c)(1)-(2); § 45.001(a)(2) (school district ad valorem taxing authority)
• Tex. Spec. Dist. Code Ann. § 1115.057 (Wilson County Memorial Hospital District trustee serves without compensation)
• Tex. Spec. Dist. Code Ann. § 1115.251(a) (hospital district ad valorem taxing authority)

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. GA-0214 (2004), GA-0328 (2005), GA-0536 (2007), GA-0786 (2010), GA-0348 (2005), GA-0015 (2003), GA-0032 (2003), JM-1266 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0023
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0023.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

June 9, 2015

The Honorable Rene M. Pena Opinion No. KP-0023
81st Judicial District Attorney
1327 Third Street Re: Whether a member of a board of trustees
Floresville, Texas 78114 of an independent school district may also
serve as a trustee of a county hospital board
with overlapping jurisdiction (RQ-1234-GA)

Dear Mr. Pena:

You ask whether a trustee of an independent school district may also serve as a trustee on a county hospital district board where the two governmental entities overlap in jurisdiction. [1] You tell us that the La Vernia Independent School District, on whose behalf you seek an opinion, is located primarily in Wilson County and overlaps in geographic territory with the Wilson County Memorial Hospital District. Request Letter at 1.

With certain exceptions not relevant here, the Texas Constitution, article XVI, section 40, prohibits a person from simultaneously holding more than one "office of emolument." TEX. CONST. art. XVI, § 40. "An 'emolument' is compensation paid to the officer and does not include reimbursement for actual expenses." Tex. Att'y Gen. Op. No. GA-0214 (2004) at 2. Both offices about which you ask are ones in which a person serves without compensation. See TEX. EDUC. CODE ANN. § 11.061(d) (West 2012) (providing that trustee of an independent school district serves without compensation); TEX. SPEC. DIST. CODE ANN. § 1115.057 (West 2014) (governing the Wilson County Memorial Hospital District and providing that a trustee serves without compensation). Thus, neither office is one of emolument subject to the constraint in article XVI, section 40.

Absent a constitutional prohibition, we consider the three aspects of the common-law doctrine of incompatibility: self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0328 (2005) at 1. Self-appointment incompatibility is derived from the Texas Supreme Court, which said that "[i]t 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." Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). The self-employment aspect prohibits a person from holding both an office and an employment that the office supervises. See Tex. Att'y Gen. Op. No. GA-0536 (2007) at 4 (stating that the key aspect of self-employment incompatibility is supervision). Because neither of the offices about which you ask appoints or employs the other, we examine your question under the conflicting-loyalties incompatibility analysis. See Tex. Att'y Gen. Op. No. GA-0328 (2005) at 1.

The doctrine of conflicting-loyalties incompatibility was first announced by a Texas court in the case of Thomas v. Abernathy County Line Independent School District, in which the court held the offices of school trustee and city alderman to be incompatible. Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted). The court said that

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.

Id. (citations omitted). In determining whether two offices are incompatible, "the crucial question is whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994).

Where the geographic boundaries of the two entities that are served by a single individual overlap, the potential for conflicting loyalties increases because the duties of the two offices are more likely to conflict. See Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 2, GA-0348 (2005) at 3, GA-0015 (2003) at 2. In particular, this office has consistently concluded that where "two districts with overlapping geographical jurisdictions each have the power of taxation, ... the potential for conflict is insurmountable." Tex. Att'y Gen. Op. No. GA-0032 (2003) at 5; see also Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 3-4, JM-1266 (1990) at 4. "Where the object of each district is to maximize its own revenues, a single individual would have great difficulty in exercising his duties to two separate and competing masters." Tex. Att'y Gen. Op. No. GA-0032 (2003) at 5.

A board of trustees of an independent school district, such as the La Vernia Independent School District, is authorized to levy and collect ad valorem taxes. See TEX. EDUC. CODE ANN. § 11.152 (West 2012); see also id. §§ 11.1511(c)(1)-(2) (authorizing levy of ad valorem taxes for principal and interest payments on issued bonds and for the maintenance and operation of the district), 45.001(a)(2) (authorizing the governing board of an independent school district to levy and collect ad valorem taxes). Likewise, the Wilson County Memorial Hospital District is authorized to impose ad valorem taxes on property in the district. See TEX. SPEC. DIST. CODE ANN. § 1115.251(a) (West 2014) (governing Wilson County Memorial Hospital District). Because each of the entities about which you ask has taxing authority in territory that overlaps with the other, simultaneous service on the governing body of both entities is prohibited by conflicting-loyalties incompatibility. Thus, a person may not serve as a member of the board of trustees of the La Vernia Independent School District while simultaneously serving as a member of the board of the Wilson County Memorial Hospital District.

SUMMARY

A person may not serve as a member of the board of trustees of the La Vernia Independent School District while simultaneously serving as a member of the board of the Wilson County Memorial Hospital District.

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 the Honorable Rene M. Pena, 81st Jud. Dist. Att'y, to Office of the Tex. Att'y Gen. at 1 (Dec. 18, 2014), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").