Can the same person serve on a Texas city council and on the board of an overlapping library district at the same time?

Plain-English summary

Sharen Wilson, the Tarrant County Criminal District Attorney, asked the AG about a person who, at the May 2016 election, was elected both to the city council of the City of Forest Hill and to the board of trustees of the Forest Hill public library district. The library district sits within the city limits. The question was whether one person could hold both positions at once, and if not, what happened to the offices.

The AG first checked the constitutional rule. Article XVI, section 40 of the Texas Constitution bars one person from holding more than one "office of emolument," meaning an office that pays compensation. But the city's charter says council members are not compensated, so the council seat is not an office of emolument, and the constitutional provision did not bar holding both offices. That did not end the matter.

The AG then turned to the common-law doctrine of incompatibility, which has three branches: self-appointment, self-employment, and conflicting loyalties. Only conflicting loyalties was in play. Texas courts have long held that two offices are incompatible when occupying both would prevent a person from exercising independent and disinterested judgment, or when the duties of one interfere with the duties of the other. Both positions have to be offices held by an "officer," someone exercising a sovereign government function for the public largely free of others' control. A city council member is an officer, and a library district trustee is too: the position is elected, and the board wields sovereign powers including taxation and the power to borrow money and acquire land.

The decisive point was overlapping taxing authority. When two entities with overlapping territory both have the power to tax, the AG has repeatedly recognized the potential for conflict is insurmountable, because each entity wants to maximize its own revenue. Here, both the city and the library district can tax the same overlapping area, and both can impose a sales-and-use tax. Because all local sales-and-use taxes share a two percent cap, the two entities directly compete for room under that limit, an ever-present conflict that would make it hard for one person to serve both fully. So the offices are incompatible and one person cannot hold both. Finally, because Texas law treats qualifying for and accepting a second incompatible office as an automatic resignation from the first, the AG concluded that when this person qualified as a library trustee, that person effectively resigned from the city council.

Currency note

This opinion was issued in 2017. 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 requesting prosecutor (as the opinion described it): The opinion answered that the two offices were incompatible and could not be held by one person, and that the individual, by qualifying as a library trustee, had effectively resigned from the city council.

City council members and library district trustees (as the opinion described them): The opinion treated both as officers and held that, where the city and an overlapping library district both have taxing authority, one person cannot hold both seats.

Voters and local governments with overlapping taxing entities (as the opinion described them): The opinion explained that overlapping taxing jurisdictions create an insurmountable conflict of loyalties, so a person elected to a second incompatible office automatically vacates the first.

Common questions

Can one person serve on a Texas city council and a library district board at the same time?
Under this opinion, no, when the city and the library district have taxing authority over overlapping territory. The AG found the offices incompatible under the conflicting-loyalties doctrine.

Why doesn't the constitution's dual-office ban apply here?
The opinion explained that article XVI, section 40 applies only to paid offices, and the Forest Hill council seat is unpaid, so it is not an "office of emolument."

What makes the two offices incompatible?
The opinion pointed to overlapping taxing authority. Both entities can tax the same area and impose a sales-and-use tax under a shared two percent cap, so they compete for revenue, creating an insurmountable conflict.

What happened to the person who was elected to both?
The opinion concluded that by qualifying for the second office of library district trustee, the person effectively resigned from the city council, because accepting a second incompatible office automatically vacates the first.

Is a library district trustee really an "officer"?
Yes. The opinion explained the trustee is elected and the board exercises sovereign powers like taxation and acquiring land, which makes a trustee an officer for the incompatibility analysis.

Background and statutory framework

Article XVI, section 40(a) of the Texas Constitution bars holding more than one office of emolument, meaning a paid office, so an unpaid city council seat is not covered (Tex. Const. art. XVI, § 40(a); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994); Tex. Att'y Gen. Op. Nos. KP-0023 (2015), KP-0032 (2015)). The common-law incompatibility doctrine has self-appointment, self-employment, and conflicting-loyalties branches, and conflicting loyalties bars holding two offices that would prevent independent and disinterested judgment, the key question being whether holding both is detrimental to the public interest or whether one office's duties interfere with the other's (Thomas v. Abernathy County Line Independent School District, 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); Tex. Att'y Gen. Op. Nos. KP-0032 (2015), GA-0169 (2004)). Each position must be held by an officer, one exercising a sovereign government function largely independent of others' control; a city council member is an officer, and an elected library district trustee, whose board holds taxation and other sovereign powers, is too (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955); Tex. Loc. Gov't Code §§ 326.043, 326.061(a), 326.091-.096; Tex. Att'y Gen. Op. No. JM-1266 (1990)).

When two overlapping entities both can tax, the potential for conflict is insurmountable because each seeks to maximize its revenue (Tex. Att'y Gen. Op. Nos. KP-0023 (2015), GA-0786 (2010), GA-0032 (2003), GA-0307 (2005)). The City and the District both can levy taxes in their overlapping territory and both can impose a sales-and-use tax subject to a shared two percent cap, increasing the likelihood of conflict as each competes for room under the limit (Tex. Const. art. XI, § 5(a); Tex. Tax Code §§ 302.001(c), 321.101(a), 321.101(f); Tex. Loc. Gov't Code §§ 326.091-.096, 326.094(a), 326.096). Qualifying for and accepting a second incompatible office operates as an automatic resignation from the first, and the officer does not hold over under article XVI, section 17 (Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1006-07 (Tex. 1935); Tex. Const. art. XVI, § 17; Tex. Att'y Gen. Op. No. GA-0015 (2003)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40(a); art. XVI, § 17; art. XI, § 5(a)
• Tex. Loc. Gov't Code §§ 326.043, 326.061(a), 326.091-.096, 326.094(a), 326.096
• Tex. Tax Code §§ 302.001(c), 321.101(a), 321.101(f)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0023 (2015)
• Tex. Att'y Gen. Op. No. KP-0032 (2015)
• Tex. Att'y Gen. Op. No. GA-0169 (2004)
• Tex. Att'y Gen. Op. No. JM-1266 (1990)
• Tex. Att'y Gen. Op. No. GA-0786 (2010)
• Tex. Att'y Gen. Op. No. GA-0032 (2003)
• Tex. Att'y Gen. Op. No. GA-0307 (2005)
• Tex. Att'y Gen. Op. No. GA-0015 (2003)

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)
• Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. 1935)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0125
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0125.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

January 3, 2017

The Honorable Sharen Wilson Opinion No. KP-0125
Tarrant County Criminal District Attorney
401 West Belknap Re: Simultaneous service on the board of
Fort Worth, Texas 76196 trustees of a public library district and on the
city council (RQ-0115-KP)

Dear Ms. Wilson:

    You seek our opinion on the simultaneous service of a person on the city council of the City of Forest Hill and as a member of the Forest Hill public library district board. [1] You tell us that at the May 2016 election the same person was elected to the city council of the City of Forest Hill ("City") as well as to the board of trustees of the Forest Hill public library district ("District"). See Request Letter at 1. You inform us that the District is "located within the territorial limits of the [C]ity." Id. at 2.

    Article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously holding more than one "office of emolument." TEX. CONST. art. XVI, § 40(a). "An 'emolument' is compensation paid to the officer and does not include reimbursement for actual expenses." Tex. Att'y Gen. Op. No. KP-0023 (2015) at 1. Here, the City's charter provides that its council members do not receive compensation. See FOREST HILL, TEX., CODE OF ORDINANCES, pt. 1, art. III, § 3.03 (2007) (Home Rule Charter). Thus, a city council position is not one of emolument. Accordingly, article XVI, section 40(a) does not bar one person holding the two offices about which you ask. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (recognizing that both positions must be civil offices of emolument for article XVI, section 40(a) to be applicable); see also Tex. Att'y Gen. Op. No. KP-0032 (2015) at 1.

    We next consider the common-law doctrine of incompatibility. The doctrine has three components: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. The circumstances you describe implicate only the conflicting loyalties component. See Request Letter at 2. In Thomas v. Abernathy County Line Independent School District, a Texas court first determined two offices to be incompatible. 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (determining the offices of school trustee and city alderman to be incompatible). In its decision, 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). Conflicting-loyalties incompatibility "prohibits an individual from simultaneously holding two positions that would prevent him or her from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2. The crucial question in determining whether two offices are incompatible "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." Pirtle, 887 S.W.2d at 930.

    Each position considered in the conflicting-loyalties analysis must be an "officer." In this context, an officer is one upon whom "any sovereign function of the government" is conferred "to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). This office previously determined that a city council member is an officer. See Tex. Att'y Gen. Op. Nos. GA-0169 (2004) at 3, JM-1266 (1990) at 2. And though this office has not yet considered the position of a library district board trustee, we note the position is an elected one, which makes it an officer. TEX. LOC. GOV'T CODE § 326.043 (providing for the election of library district trustees); see also Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2 ("Elected officials are clearly officers[.]"). In addition to taxation authority, the powers entrusted to a library district board include the power to "borrow money, purchase, construct, acquire, own, ... or improve any land" necessary for the district. TEX. LOC. GOV'T CODE § 326.061(a); see also id. §§ 326.091-.096 (governing the imposition of a sales and use tax by a library district). Such powers are sovereign powers exercised for the public by the board and its members, and because the board members are elected they are "largely independent of the control of others." Aldine, 280 S.W.2d at 583. Thus, a library district board trustee is an officer for purposes of the conflicting-loyalties incompatibility analysis.

    In instances where the geographic boundaries of the two entities at issue overlap, "the potential for conflicting loyalties increases because the duties of the two offices are more likely to conflict." Tex. Att'y Gen. Op. No. KP-0023 (2015) at 2. As this office has recognized on numerous occasions, when "two districts with overlapping geographical jurisdictions each have the power of taxation, ... the potential for conflict is insurmountable." Id.; see also Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 3-4, GA-0032 (2003) at 5, JM-1266 (1990) at 4. Such is the case because "[w]here 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.

    In their overlapping territory, the City and the District each have authority to tax. [2] See TEX. CONST. art. XI, § 5(a) (authorizing home-rule cities to levy taxes); see also TEX. TAX CODE §§ 302.001(c) (authorizing a home-rule municipality to levy special or general property taxes), 321.101(a) (authorizing a municipality to impose sales and use tax); TEX. LOC. GOV'T CODE §§ 326.091-.096 (providing for imposition of sales and use tax by library district). The object of each entity's taxation authority is to maximize its revenues such that one individual would have difficulty in fully exercising his or her duties to separate and competing entities. See Tex. Att'y Gen. Op. No. GA-0307 (2005) at 4-5. As this office observed in Opinion GA-0307, because each entity has authority to call an election to impose, increase, or abolish a tax, each entity has substantial authority with regard to the levy of taxes. Id. at 4; see also TEX. LOC. GOV'T CODE § 326.094(a) (authorizing a library district to "call an election to increase, decrease, or abolish the local sales and use tax rate"); TEX. TAX CODE § 321.101(a) (authorizing a municipality to conduct an election to reduce, increase, or abolish the sale and use tax rate). Moreover, here the City and the District both have authority to impose a sales and use tax. See TEX. TAX CODE § 321.101(a) (authorizing a municipality to impose sales and use tax); TEX. LOC. GOV'T CODE §§ 326.091-.096 (providing for imposition of sales and use tax by library district). Because a sales and use tax is limited to a two percent tax rate between the entities imposing a sales and use tax, there is an increased likelihood of conflict between the two entities as they each seek to maximize their percentage within the limit. See TEX. TAX CODE § 321.101(f) (imposing two percent limit on all sales and use taxes imposed by the municipality and other taxing authorities); TEX. LOC. GOV'T CODE § 326.096 (same). Thus, competition between the City and the District to impose a maximum sales and use tax within the limit is an ever-present issue confronted by this individual that would make it difficult for the individual to fully exercise his or her duty to either entity. Given the taxation authority in the two entities with overlapping territories, the offices of city council member and library district trustee are incompatible, and one individual may not simultaneously serve in both.

    Because of this conclusion, we next consider your question about the status of the holder of the dual offices. See Request Letter at 1, 3. You tell us that the person was first sworn in as a city council member and then sworn in as a trustee of the library board. See id. at 1. The Texas Supreme Court has determined that qualification for and acceptance of a second incompatible office operates as an automatic resignation from the first. See Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1006 (Tex. 1935); Thomas, 290 S.W.2d at 153. "[A]n officer who vacates his or her office by accepting and qualifying for a second incompatible office does not hold over under article XVI, section 17 of the Texas Constitution." Tex. Att'y Gen. Op. No. GA-0015 (2003) at 6 (citing Pruitt, 84 S.W.2d at 1007, and TEX. CONST. art. XVI, § 17). Under the facts you provide, in qualifying for the second office of library district trustee, the individual effectively resigned from the office of city council.

                                SUMMARY

                  Because the City of Forest Hill and the Forest Hill Library District have taxation authority in overlapping territories, one individual may not simultaneously serve as a city council member and as a library district trustee. In qualifying for the second office of library district trustee, the individual effectively resigned from the office of city council.

                                       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

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Sharen Wilson, Tarrant Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (July 7, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] To the extent the District's sales and use taxation authority differs from the City's ad valorem property taxation authority, this office previously dismissed such a distinction in this context. See Tex. Att'y Gen. Op. No. GA-0307 (2005) at 4-5 (concluding that an individual's simultaneous service to two entities with differing types of taxing authority was incompatible).