ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### January 6, 2009

The Honorable JeffWentworth 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 chiefofan independent school district may simultaneously serve as a member ofa city council ofa 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 onthe rule that officers who have the appointing power are "disqualified for appointmentto 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 becausethe city aldermenhave "various directory or supervisory powers exertable in respect to school property located within the city ortown and in respect to the duties ofschool trustee[s] performable within its limits"). Attorney general opinions have described this strand ofthe 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 JeffWentworth

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In order for conflicting loyalties incompatibility to apply, however, both positions must constitute "offices." 

### See Thomas, 290 S.W. at 153 (concludingthatthe "offices ofschooltrustee 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 conferreduponthe individualto be exercisedbyhim forthebenefitof the public largelyindependent ofthe control ofothers." 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 subjectto the control ofothers is not an "officer." 

### See Tex. Att'y Gen. Ope No. GA-0538 (2007) at 2. Inparticular, this office in Attorney General Opinion GA-0393 advisedthat 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 thatthe particular individual was not prohibited by conflicting loyalties incompatibility from simultaneously serving as a member ofthe board oftrustees ofan independent school district located within the geographical limits ofcity. 

### Id. at 4. Based on the statutory provisions applicable to an independent school district, a school district police chiefs actions are subjectto the control ofthe district's board oftrustees and school superintendent. The authorityto 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 chiefis employed by the board oftrustees. 

### See id

. .§ 37.081 (a) (Vernon 2006) (authorizing board of trustees to "employ security personnel" and "commission peace officers"). The police chiefperforms 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 andlawenforcementduties" as determinedbytheboard). 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 chiefexecutive 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) (concludingthat a school superintendent is an employee or agent ofthe board oftrustees and not an officer for the purposes ofnepotism statutes). Under these provisions, the police chiefis subject to the control ofothers-the school superintendent and the board of trustees-and cannot be said to exercise authority "largely independent ofthe control ofothers." 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 othergrounds byNat'!Sur. Corp. v. FriendswoodIndep. Sch. Dist., 433 S.W.2d 690 (Tex. 1968).

### The Honorable JeffWentworth

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### SUMMARY The common-law doctrine ofincompatibility does not bar an individual from simultaneously serving as the chiefofpolice ofan independent school district and as a city council member ofa 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