Can the same person serve as both a community college trustee and a county commissioner in Texas?

Plain-English summary

Brazos County Attorney Rodney Anderson asked the AG whether one person could simultaneously serve as a board trustee of Blinn College and as a Brazos County commissioner. The question grew out of a 2015 law, section 130.0827 of the Education Code, which requires the commissioners court of each county that has a Blinn College branch campus enrolling more than 10,000 students to appoint two additional trustees to the college board. Those appointed trustees serve two-year terms, may be reappointed, and may take part in most board decisions, but they may not participate in decisions about imposing a tax or distributing tax revenue. Brazos County had appointed two trustees under this section, and one of them was running unopposed for county commissioner.

The AG worked through two bodies of law. First, the constitutional ban on dual office holding in article XVI, section 40 forbids holding more than one civil office of emolument, but it expressly excludes county commissioners. So a county commissioner may hold another civil office without running into the constitutional bar.

Second, the common-law doctrine of incompatibility, which has three aspects. On self-appointment, the AG noted that the commissioners court appoints the additional trustees, so the self-appointment aspect could make the two offices incompatible in some circumstances. Even though the person was not on the commissioners court when first appointed to the board, the commissioners court would have authority to appoint her to a successive term. On self-employment, the AG saw no issue, assuming the commissioners court has no supervisory authority over a trustee after appointment. On conflicting loyalties, the AG explained that two governing bodies are incompatible whenever one entity may exert authority contrary to the other's interests. The county attorney had suggested that because the appointed trustees cannot vote on taxes, the conflict was cured. The AG disagreed: removing the tax-vote conflict addressed only one potential conflict. Because a Blinn College branch campus sits in Brazos County, the interests of the college and the county were likely to conflict in other areas, such as roads and easements, so the same person could not exercise disinterested judgment on both boards. The AG concluded a court would likely hold that the conflicting-loyalties aspect of incompatibility bars one person from serving as both a Blinn College trustee and a Brazos County commissioner.

Currency note

This opinion was issued in 2016. 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.

What the opinion meant for those who asked

The Brazos County Attorney (as the opinion described it): The opinion answered the question by concluding that a court would likely hold the conflicting-loyalties aspect of common-law incompatibility precludes one person from serving simultaneously as a Blinn College trustee and a Brazos County commissioner.

The trustee-commissioner candidate (as the opinion described the situation): The opinion treated the two offices as incompatible under the common-law doctrine, notwithstanding that the constitutional dual-office ban did not apply to county commissioners and that the appointed trustees could not vote on tax matters.

The commissioners court and Blinn College board (as the opinion described them): The opinion explained that because the commissioners court appoints the additional trustees and the two bodies share territory, both the self-appointment aspect (for successive terms) and the conflicting-loyalties aspect were in play, with the conflicting-loyalties aspect being the deciding one.

Common questions

Does the Texas Constitution bar a county commissioner from holding another office?
As the opinion described it, no. Article XVI, section 40 bans holding more than one civil office of emolument, but it expressly excludes county commissioners, so the constitutional ban was not the barrier here.

Why are the two offices still incompatible?
The opinion relied on the common-law conflicting-loyalties doctrine: two governing bodies are incompatible whenever one may exert authority contrary to the other's interests. Because a Blinn College campus sits in Brazos County, their interests were likely to conflict.

Didn't the no-tax-vote rule fix the conflict?
The opinion said it helped but did not cure the problem. Removing the trustees' ability to vote on taxes addressed only one potential conflict; conflicts in other areas like roads and easements remained.

What is self-appointment incompatibility?
The opinion described it as the rule that an officer with appointing power is disqualified from the offices they may appoint. Because the commissioners court appoints the extra trustees, the self-appointment aspect could apply, at least for a successive-term appointment.

Is an AG opinion binding on this question?
No. AG opinions are persuasive authority, not binding law. The opinion predicted how a court would likely rule; only a court can finally decide whether the offices are incompatible.

Background and statutory framework

The Texas Constitution prohibits holding more than one civil office of emolument but expressly excludes county commissioners from that prohibition (Tex. Const. art. XVI, § 40(a); Gaal v. Townsend, 14 S.W. 365, 366 (Tex. 1890)). Section 130.0827 of the Education Code, enacted in 2015, requires the commissioners court of each county with a qualifying Blinn College branch campus to appoint two additional trustees who serve two-year terms, may be reappointed, and may participate in board decisions except those imposing a tax or distributing tax revenue (Tex. Educ. Code §§ 130.0827, 130.0827(a), 130.0827(b), 130.0827(c)(1); Act of May 27, 2015, 84th Leg., R.S., ch. 869, § 1, 2015 Tex. Gen. Laws 2960, 2960-61).

Common-law incompatibility has three aspects, and the test 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); Tex. Att'y Gen. Op. No. GA-0786 (2010)). Self-appointment incompatibility disqualifies an officer with appointing power from offices to which they may appoint (Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)). Self-employment incompatibility bars holding an office and an employment the office supervises (Tex. Att'y Gen. Op. No. KP-0054 (2015)). Conflicting-loyalties incompatibility bars holding two positions that would prevent independent and disinterested judgment, and applies when two governing bodies with overlapping territory may exert authority contrary to one another (Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927); Tex. Att'y Gen. Op. Nos. GA-0169 (2004), JM-129 (1984), GA-0793 (2010), H-1019 (1977)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40(a)
• Tex. Educ. Code §§ 130.0827, 130.0827(a), 130.0827(b), 130.0827(c)(1)
• Act of May 27, 2015, 84th Leg., R.S., ch. 869, § 1, 2015 Tex. Gen. Laws 2960

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0786 (2010)
• Tex. Att'y Gen. Op. No. KP-0054 (2015)
• Tex. Att'y Gen. Op. No. GA-0169 (2004)
• Tex. Att'y Gen. Op. No. JM-129 (1984)
• Tex. Att'y Gen. Op. No. GA-0793 (2010)
• Tex. Att'y Gen. Op. No. H-1019 (1977)

Cases:

• Gaal v. Townsend, 14 S.W. 365 (Tex. 1890)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0119
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0119.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

November 29, 2016

The Honorable Rodney W. Anderson Opinion No. KP-0119
Brazos County Attorney
Brazos County Courthouse Re: The effect of section 130.0827 of the
300 East 26th Street, Suite 1300 Education Code on the simultaneous service of an
Bryan, Texas 77803-5359 individual as a board trustee of Blinn College and
a Brazos County commissioner (RQ-0108-KP)

Dear Mr. Anderson:

    You ask about the effect of section 130.0827 of the Education Code on the simultaneous service of an individual as a board trustee of Blinn College and a Brazos County commissioner. [1] In particular, you request an opinion about the common-law "doctrine of incompatibility and the constitutional provision of dual office holding as it pertains to a County Commissioner elect and the Blinn College Board of Trustees." Request Letter at 1. You inform us that Blinn College has four district campuses, and its service area includes Brazos County, Washington County, and several other counties. Id. Although the largest campus is in Brazos County, previously all seven of the members on the Blinn College Board of Trustees were from Washington County, where Blinn College exercises taxing authority. Id.

     Section 130.0827 of the Education Code, passed in 2015 by the Eighty-fourth Legislature, requires the appointment of additional members to the Blinn College Board of Trustees. TEX. EDUC. CODE § 130.0827(a). [2] In addition to the trustees who are elected or appointed pursuant to other provisions, "the commissioners court of each county in which a branch campus of the district with a student enrollment greater than 10,000 is located shall appoint two members to serve on the district's board of trustees." Id. These additional members serve a two-year term and may be appointed to serve successive terms. Id. § 130.0827(b). They generally may participate in the district board's decision-making, except that the members appointed under section 130.0827 may not participate in decision-making "related to the imposition of a tax or the distribution of revenue raised from a tax." Id. § 130.0827(c)(1). You state that Brazos County recently appointed two trustees under this section, one of whom has become a candidate for Brazos County commissioner, precinct 3, and is unopposed in the upcoming general election. Request Letter at 1-2.

    We first address the "constitutional provision of dual office holding as it pertains to a County Commissioner elect and the Blinn College Board of Trustees." Id. at 1. Article XVI, section 40 of the Texas Constitution prohibits an individual from simultaneously holding "more than one civil office of emolument," but it expressly excludes county commissioners from the prohibition. TEX. CONST. art. XVI, § 40(a). Thus, a county commissioner may hold another civil office without violating the constitutional prohibition against dual office holding. See id.; Gaal v. Townsend, 14 S.W. 365, 366 (Tex. 1890).

    Next, we address the common-law doctrine of incompatibility. Common-law incompatibility has three aspects: self-appointment, self-employment, and conflicting loyalties incompatibility. See Tex. Att'y Gen. Op. No. GA-0786 (2010) at 1. For determining the compatibility of two offices, "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).

   The first aspect of common-law incompatibility, self-appointment incompatibility, derives from a Texas Supreme Court opinion, Ehlinger v. Clark, which stated 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). Because the Brazos County commissioners court possesses the authority to appoint the additional trustees, the self-appointment aspect may render the offices of county commissioner and college district board of trustees incompatible in certain circumstances. See TEX. EDUC. CODE § 130.0827(b). Although the individual you identify was not a member of the commissioners court when it appointed her to the board of trustees, the commissioners court will have authority to appoint her to a successive term on the board. See id.; Request Letter at 1-2.

    The second aspect of the doctrine, self-employment incompatibility, "prohibits a person from holding both an office and an employment that the office supervises." Tex. Att'y Gen. Op. No. KP-0054 (2015) at 1. Assuming that the commissioners court does not have supervisory authority over a district trustee after appointment, self-employment incompatibility does not appear to be an issue.

   The third aspect of the doctrine, conflicting-loyalties incompatibility, "prohibits an individual from simultaneously holding two positions that would prevent him ... from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2; see also Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927) (holding that positions of school trustee and municipal alderman are incompatible because of the various regulatory powers the municipality could exert on school property). You ask specifically about conflicting loyalties incompatibility as it was discussed in Attorney General Opinion JM-129. Request Letter at 2. In that opinion, this office concluded that a trustee of the Dallas County Community College may not simultaneously serve as a Dallas County commissioner, in part because the county and the college district would have conflicting interests with respect to tax collection. Tex. Att'y Gen. Op. No. JM-129 (1984) at 2. You suggest that because the trustees appointed by the Brazos County commissioners court may not participate in taxation decisions, the conflicting-loyalties aspect of incompatibility may not prevent one person from holding both offices simultaneously. Request Letter at 2-3; TEX. EDUC. CODE § 130.0827(c)(1).

     While the appointed trustees' lack of authority to participate in tax and revenue decisions ameliorates one potential basis of incompatibility, offices of two governing bodies are incompatible whenever one entity may exert authority contrary to the interests the other. Thomas, 290 S.W. at 153. As the opinion in JM-129 observed, when the boundaries of a college district and a county overlap, "the potential for other conflict always exists." Tex. Att'y Gen. Op. No. JM-129 (1984) at 3. In light of the fact that a Blinn College branch campus is located in Brazos County, the interests of Blinn College and the county are likely to conflict, in which case an individual could not exercise disinterested judgment when serving on both governing boards. See, e.g., id. at 2-3 (noting that the duties of the county commissioners court could conflict with duties of the college district with respect to roads); Tex. Att'y Gen. Op. Nos. GA-0793 (2010) at 3 (determining that a school district is not entitled to install a fiber-optic cable on a county road right-of-way but may be able to acquire an easement from the county); H-1019 (1977) at 1 (noting county's authority to enter into an agreement with a school district under the Interlocal Cooperation Act). Therefore, a court would likely conclude that the conflicting-loyalties aspect of common-law incompatibility precludes an individual from simultaneously serving as a member of the Blinn College Board of Trustees and as a Brazos County commissioner.

                                SUMMARY

                 A court would likely conclude that the conflicting-loyalties aspect of common-law incompatibility precludes an individual from simultaneously serving as a member of the Blinn College Board of Trustees and as a Brazos County commissioner.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Rodney W. Anderson, Brazos Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 27, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Act of May 27, 2015, 84th Leg., R.S., ch. 869, § 1, 2015 Tex. Gen. Laws 2960, 2960-61.