Can the same person be a Texas county judge and a school board trustee at the same time?

Plain-English summary

The Webb County Attorney brought the AG a dual-office-holding question. In March 2018, a sitting trustee of the Jim Hogg County Independent School District was elected county judge for Jim Hogg County. Could the same person hold both positions at once? The AG worked through the two bodies of law that limit dual office holding in Texas: the constitutional ban on holding more than one paid office, and the common-law doctrine of incompatibility.

The constitutional provision did not stand in the way. Article XVI, section 40(a) bars a person from simultaneously holding more than one "office of emolument," meaning an office that carries a pecuniary profit, gain, or advantage. A school district trustee, however, serves without compensation under the Education Code, so the trustee position is not an office of emolument. With one of the two offices unpaid, the constitutional ban did not apply.

The common-law doctrine of incompatibility was a different matter. That doctrine has three branches: self-appointment, self-employment, and conflicting loyalties. The first two were not in play, because neither office appoints or employs the other. The conflicting-loyalties branch, drawn from the 1927 Thomas v. Abernathy County Line Independent School District decision, asks whether holding both offices is detrimental to the public interest or whether performing the duties of one interferes with the other. It applies only when each position is a true "office," meaning the holder exercises a sovereign function of government largely independent of others' control. Both positions cleared that bar: the Education Code vests trustees with the exclusive power to govern the district's schools, and the county judge is an elected official, which makes the position an office.

From there the conflict was clear. The AG has consistently held that when two entities with overlapping geographic jurisdictions both have taxing power, the potential for conflicting loyalties is insurmountable. The Jim Hogg County Independent School District and Jim Hogg County have substantially overlapping, if not identical, boundaries, and both the commissioners court and the school board levy taxes within their territory. Because each office carries taxing authority over overlapping ground, conflicting-loyalties incompatibility barred one person from serving in both. The AG added, in a footnote, that when an officer accepts an incompatible office, the first office becomes vacant on the date the person qualifies for the second, and a person elected to a regular term qualifies on or soon after January 1 following the election.

Currency note

This opinion was issued in 2019. 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 county and school district involved: The AG concluded that one person could not serve as Jim Hogg County Judge and as a Jim Hogg County Independent School District trustee at the same time, because the offices were incompatible at common law.

Local officials weighing two seats with overlapping taxing power: The opinion restated the AG's settled rule that overlapping geographic jurisdictions plus taxing authority in both offices create an insurmountable potential for conflicting loyalties.

Anyone tracking when the first seat opens up: The AG noted, citing Election Code § 201.025, that the first office becomes vacant by operation of law when the person qualifies for the incompatible second office.

Common questions

Can a Texas school board trustee also be the county judge?
At the time of this opinion, not where the district and county overlap. The AG concluded the common-law conflicting-loyalties doctrine barred holding both, because both offices tax overlapping territory.

Doesn't the constitution's two-office ban settle it?
No. The AG explained that article XVI, section 40(a) bars holding two paid offices, but a school trustee serves without compensation, so that constitutional ban did not apply here.

Why does overlapping territory matter?
The AG explained that when two entities with overlapping geographic jurisdictions both have taxing power, the office has long treated the potential for conflicting loyalties as insurmountable.

What happens to the first office when someone takes an incompatible second one?
The AG noted that under Election Code § 201.025, a vacancy in the first office occurs on the date the person qualifies for the other office.

Background and statutory framework

Texas limits dual office holding through Article XVI, section 40(a) of the Constitution, which prohibits simultaneously holding more than one office of emolument (Tex. Const. art. XVI, § 40(a); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding)). Because a school trustee receives no compensation (Tex. Educ. Code § 11.061(d)), the trustee position is not an office of emolument, so the constitutional ban did not apply.

The AG then applied the common-law incompatibility doctrine and its conflicting-loyalties branch, first described in Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), under which the crucial question is whether holding both offices harms the public interest or whether one office's duties interfere with the other's (Pirtle, 887 S.W.2d at 930). The doctrine applies only to true offices, that is, positions exercising a sovereign function largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)). Trustees hold the exclusive power to govern the district's schools (Tex. Educ. Code § 11.151(b)), and the county judge is an elected official (Tex. Const. art. V, § 15), so both are offices (Tex. Att'y Gen. Op. Nos. KP-0114 (2016), JM-1266 (1990)). Because the county and the district have overlapping boundaries and both levy taxes (Tex. Const. art. VIII, § 9(b); Tex. Educ. Code § 11.1511(b)(8)), the AG followed its consistent line of opinions treating overlapping taxing jurisdictions as creating insurmountable conflict (Tex. Att'y Gen. Op. Nos. KP-0125 (2017), KP-0023 (2015), GA-0786 (2010), GA-0032 (2003), JM-1266 (1990)). The first office becomes vacant when the person qualifies for the incompatible second office (Tex. Elec. Code § 201.025; Tex. Gov't Code § 601.003(b)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40(a); art. V, § 15; art. VIII, § 9(b)
• Tex. Educ. Code § 11.061(d); § 11.151(b); § 11.1511(b)(8)
• Tex. Elec. Code § 201.025
• Tex. Gov't Code § 601.003(b)

Cases and Attorney General opinions:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding)
• 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, 583 (Tex. 1955)
• Tex. Att'y Gen. Op. Nos. KP-0125 (2017), KP-0114 (2016), KP-0023 (2015), GA-0786 (2010), GA-0032 (2003), JM-1266 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0228
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0228.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 7, 2019

The Honorable Marco A. Montemayor Opinion No. KP-0228
Webb County Attorney
1110 Washington Street, Suite 301 Re: Whether a member of an independent
Laredo, Texas 78040 school district board of trustees may
simultaneously serve as the county judge
(RQ-0230-KP)

Dear Mr. Montemayor:

    You ask whether a person serving on the board of trustees of an independent school district

may simultaneously serve as the county judge. [1] You tell us that in March 2018, a trustee of the
Jim Hogg County Independent School District was elected county judge for Jim Hogg County.
See Request Letter at 1. Article XVI, section 40 of the Texas Constitution and the common-law
doctrine of incompatibility restrict dual office holding, and we address each in turn.

    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). This provision
applies if both positions are offices entitled to an emolument, which is a "pecuniary profit, gain,
or advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig.
proceeding). A trustee serving on the school board of an independent school district receives no
compensation and therefore does not occupy an office of emolument. TEX. EDUC. CODE
§ 11.061(d). Accordingly, article XVI, section 40(a) does not bar an individual from
simultaneously holding the two offices about which you ask.

    We next consider the common-law doctrine of incompatibility. This doctrine comprises

three components: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y
Gen. Op. No. KP-0125 (2017) at 1. You tell us that neither office employs nor appoints the other,
and thus, the first two components do not apply. See Request Letter at 2; see also Tex. Att'y Gen.
Op. No. KP-0114 (2016) at 1. We examine the conflicting-loyalties component under the analysis
first described in Thomas v. Abernathy County Line Independent School District, 290 S.W. 152
(Tex. Comm'n App. 1927, judgm't adopted). In its decision, the court stated

           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. at 153 (holding the offices of school trustee and city alderman as incompatible (citations
omitted)). When determining the incompatibility 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." Pirtle,
887 S.W.2d at 930. For the conflicting-loyalties analysis to apply, each position considered must
be an "office." See Tex. Att'y Gen. Op. No. KP-0125 (2017) at 2.

     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). The Education
Code vests in trustees "the exclusive power and duty to govern and oversee the management of
the public schools of the district." TEX. EDUC. CODE § 11.151(b). Thus, a school board trustee
holds an office under Aldine. See Tex. Att'y Gen. Op. No. KP-0114 (2016) at 2. The county judge
is an elected position, and therefore an office. See TEX. CONST. art. V, § 15 (providing that a county
judge shall be elected in each county); Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2 (stating
"[e]lected officials are clearly officers" under the Aldine test).

    Generally, where the geographical boundaries of 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. In particular, this office has consistently
concluded that 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. KP-0125 (2017) at 2, GA-0786 (2010) at 3-4, GA-0032 (2003) at 5, JM-1266 (1990) at

4. Here, the geographic boundary of Jim Hogg County Independent School District as compared
   to that of Jim Hogg County reveals a substantial, if not identical, overlap. [2] In addition, both a
   commissioners court and a school district board have taxing authority within their respective
   boundaries. See TEX. CONST. art. VIII, § 9(b) (vesting the commissioners court with authority to
   levy the annual tax rate for the county); see also TEX. EDUC. CODE § 11.1511(b)(8) (authorizing
   school district board to adopt a tax rate each fiscal year). Because each entity about which you
   ask has taxing authority in territory that overlaps with the other, conflicting-loyalties
   incompatibility prohibits simultaneous service on the governing body of both entities. Thus, an
   individual may not serve as the Jim Hogg County Judge while simultaneously serving as a member
   of the board of trustees of the Jim Hogg County Independent School District. [3]

                                SUMMARY
   
                A person may not serve as Jim Hogg County Judge while
         simultaneously serving as a member of the board of trustees of the
         Jim Hogg County Independent School District.
   
                                      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

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 4, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Compare TEX. STATE HISTORICAL ASS'N., TEX. ALMANAC 338 (69th ed. 2018), https://texasalmanac.com/sites/default/files/images/maps/JimHogg.pdf (illustrating Jim Hogg County boundary lines), with Jim Hogg County ISD Boundary Map, MAPTECHNICA, https://www.maptechnica.com/school-district-map/TX/Jim+Hogg+County+Independent+School+District/unsd/4824750 (providing a map of school district boundary lines).

[3] You tell us the individual was a member of the Jim Hogg County Independent School District when he was elected county judge for Jim Hogg County for a term beginning in January 2019. When an officer accepts an incompatible office, "a vacancy in the first office occurs on the date the person qualifies for the other office." TEX. ELEC. CODE § 201.025. A person elected to a regular term of office "shall qualify and assume the duties of office on, or soon as possible after, January 1 of the year following the person's election." TEX. GOV'T CODE § 601.003(b).