ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 6, 2009

The Honorable Jeff Wentworth

Chair, Committee on Jurisprudence

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Dear Senator Wentworth:

Opinion No. GA-0688

Re: Whether the police chief of an independent

school district may simultaneously serve as a

member of a city council of a city that is located

within the geographical boundaries ofthe school

district (RQ-0724-GA)

You ask whether an individual may simultaneously serve as a chief of police of an

independent school district and a city council member of a city located within the geographical

boundaries ofthe school district without violating the doctrine ofincompatibility. 1

The common-law doctrine of incompatibility prohibits an individual from "appointing

himselfto another public position, or from holding both an office and an employment subordinate

to the office." Tex. Att'y Gen. Ope No. GA-0488 (2006) at 2; see also Ehlinger V. Clark, 8 S.W.2d

666, 674 (Tex. 1928) (voiding a county contract employing county commissioner as an attorney

relying on the rule that officers who have the appointing power are "disqualified for appointment to

the offices to which they may appoint"). "Because neither the police chief nor the city council

appoints or employs the other, the self-appointment and self-employment strands of the

incompatibility doctrine are not applicable here.

This common-law doctrine also prohibits an individual from holding two public offices that

perform inconsistent or conflicting duties. See Thomas v. Abernathy County Indep. Sch. Dist., 290

S.W. 152,153 (Tex. Comm'n App. 1927,judgm't adopted) (concluding that the public offices of

school trustee and city aldermen are incompatible because the city aldermen have "various directory

or supervisory powers exertable in respect to school property located within the city or town and in

respect to the duties ofschool trustee[s] performable within its limits"). Attorney general opinions

have described this strand of the doctrine as conflicting loyalties incompatibility. See, e.g., Tex.

Att'y Gen. Ope Nos. GA-0538 (2007) at 1-2, GA-0328 (2005) at 1-2.

ISee Request Letter (available at http://www.texasattomeygeneral.gov).
The Honorable Jeff Wentworth - Page 2 (GA-0688)

In order for conflicting loyalties incompatibility to apply, however, both positions must

constitute "offices." See Thomas, 290 S.W. at 153 (concluding that the "offices ofschool trustee and

alderman are incompatible"); see also Tex. Att'y Gen. Ope No. GA-0393 (2006) at 2-3 ("The clear

message of Thomas is that, in order for conflicting loyalties incompatibility to be applicable to

a particular situation, each position must constitute an 'office."'). The decisive factor which

distinguishes an officer from an employee, as explained by the Texas Supreme Court in Aldine

Independent School District v. Standley, is "whether any sovereign function ofthe government is

conferred upon the individual to be exercised by him for the benefit ofthe public largely independent

ofthe control of others." 280 S.W.2d 578, 583 (Tex. 1955)2 (quoting Dunbar v. Brazoria County,

224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ refd)).

Relying on the Aldine rationale, this office has opined that, in general, an individual whose

actions are subject to the control ofothers is not an "officer." See Tex. Att'y Gen. Ope No. GA-0538

(2007) at 2. In particular, this office in Attorney General Opinion GA-0393 advised that a city chief

ofpolice-who by statute served at the pleasure ofthe city's governing body-was "an employee

rather than an officer" because "[h]isactions are subject to control and his employment may be

terminated at will by the governing body." Tex. Att'y Gen. Ope No. GA-0393 (2006) at 3-4.

Accordingly, the opinion concluded that the particular individual was not prohibited by conflicting

loyalties incompatibility from simultaneously serving as a member ofthe board oftrustees of an

independent school district located within the geographical limits of city. Id. at 4.

Based on the statutory provisions applicable to an independent school district, a school

district police chiefs actions are subject to the control ofthe district's board oftrustees and school

superintendent. The authority to govern and manage an independent school district is vested in its

board oftrustees. TEx. EDUC. CODE ANN. §§ 11.051(a)(I), .151(b) (Vernon 2006 & Supp. 2008).

A school district police chief is employed by the board of trustees. See id. .§ 37.081 (a) (Vernon

2006) (authorizing board of trustees to "employ security personnel" and "commission peace

officers"). The police chief performs the duties for the school district as determined by the board

oftrustees. See id. § 37.081(d) (providing that "district peace officer shall perform administrative

and law enforcement duties" as determined by the board). Moreover, the police chiefis "accountable

to the superintendent" and reports "to the superintendent," who in tum is employed by and reports

to the board of trustees. Id. § 37.081(f); see also ide § 11.201(a)-(b) (Vernon Supp. 2008)

(authorizing board oftrustees to employ a school superintendent, who is "the educational leader and

chief executive officer ofthe school district"); Pena v. Rio Grande City Consolo Indep. Sch. Dist.,

616 S.W.2d 658, 660 (Tex. App.-Eastland 1981, no writ) (concluding that a school superintendent

is an employee or agent of the board of trustees and not an officer for the purposes of nepotism

statutes). Under these provisions, the police chief is subject to the control of others-the school

superintendent and the board of trustees-and cannot be said to exercise authority "largely

independent of the control of others." He is thus an employee rather than an "officer" under the

standard established by Aldine and followed by this office. Consequently, the police chiefposition

is not an "office" to which the conflicting loyalties incompatibility doctrine applies.

2Disapprovedsub nom on other grounds byNat'! Sur. Corp. v. FriendswoodIndep. Sch. Dist., 433 S.W.2d 690

(Tex. 1968).
The Honorable Jeff Wentworth - Page 3 (GA-0688)

SUMMARY

The common-law doctrine ofincompatibility does not bar an

individual from simultaneously serving as the chief of police of an

independent school district and as a city council member of a city

located within the geographical limits ofthe school district.

ANDREW WEBER

First Assistant Attorney General

JONATHAN K. FRELS

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Sheela Rai

Assistant Attorney General, Opinion Committee