# The Attorney General of Texas

JIM MATTOX Attorney General December 5, 1983

Supreme Court Building P. 0. Box 12546 Austin, TX. 76711. 2546 512/475-2601 Telex 9101674-1367 Telecopier 5121475.0266

714 Jackson, Suite 700 Dallas, TX. 75202.4506 2141742.6944

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200 Main Plaza, Suite 400 San Antonio. TX. 76205.2797 512/225-4191

An Equal Opportunity/ Affirmative Action Employer Mr. Larry Temple OpinionNo. m-97 Chairman CoordinatingBoard Re: Whether an individual Texas Collegeand University System may 8srve simultaneouslyas a P. 0. Box 12788,Capitol Station member of the Coordinating Austin, Texas 78711 Board and a Junior College Board

Dear Mr. Temple:

You have askedus to determinewho is theproperholder of one of the positions on the Coordinating Board of the Texas College and University System -- Dr. GwendolynMorrison or Mr. George Bramblett. You inform us that Governor Clements appointed Dr. Morrison to the Coordinating Board of the Texas College and University System in October, 1979 for a term to expire in August, 1985. At the time of her appointment to the Coordinating Board of the Texas College and University System Dr. Morrison was serving a six-year term on the Tarrant CountyJunior College Roard towhich shewas elected inApril, 1976. Against the advice of Governor Clements' legal staff, Dr. Morrison continued to serve on theTarrant CountyJunior CollegeBoard after her appointment to the Coordinating Board of the Texas College and University System. In April 1982, Dr. Morrison was x-elected to her position on the Tarrant County Junior College Board. Contending that Dr. Morrison could not serve concurrent terms on the twoboards, GovernorMark White appointedMr. GeorgeBramblett to the Coordinating Board of the Texas College and University System to replace Dr. Morrison on October 6, 1983.

Dr. Morrison insists that she can continue to serve on both boards and that Governor White's appointment of Mr. Bramblett was invalid. We disagree with Dr. Morrison. We conclude that Dr. Morrison relinquishedher position on the Coordinating Board of the Texas College and University Systemwhen she began her second term on the Tarrant County Junior College Board and that Mr. Bramblett is the proper holder of thepositionvacatedby Dr. Morrison.

Texas lawprovides that onepersonmay not hold two civil offices which are incompatible. Attorney GeneralOpinion O-3308 (1941). This office has determined incompatibility on a case-by-case basis. See Attorney General OpinionsM-842 (1971) (officesof domestic relations

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judge and member of board of directors of Texas Southern University are compatible); V-63 (1947) (offices of county commissioner and trustee of independent school district are compatible);O-5145 (1943) (offices of county commissioner and trustee of a rural high school districtare incompatible).
Attorney General Opinion V-63 set forth the following test for determiningwhether two offices shouldbe consideredincompatible:

One of the most important tests as to whether officesare incompatibleis found in theprinciple that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervisionby the other, or where a contrariety and antagonismwould result in the attempt by one person to discharge the duties of both. Under this principle two offices are incompatablewhere the incumbent of one has the power . . . of appointment as to the other office, or to audit the aCCO""ts of another, or to exercise a supervisionover another.
Attorney General Opinion V-63 (citingKnuckles v. Board of Education of Bell County, 114 S.W.2d 511 (KY. 1938).

We conclude that positionson the CoordinatingBoard of the Texas College and University System and the Tarrant County Junior College Board are incompatible. Section 61.051 of the Education Code defines the role of the CoordinatingBoard of the Texas Collegeand University System:
(a) The board shall represent the highest

authority in the state inmatters of publichigher education.
(b) The board shalldefinea junior college,a senior college, a university, and a university system;provided, thatnothing in this sectionmay be construed to authorize the board to establish or create any university system or to alter any university system presently existingby virtue of statute or the constitutionof this state.
(c) The board shall develop and publish criteria to be used as a basis fordetermining the need for changing the classificationof any public institution of higher education and for determining the need for new public junior

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colleges,public seniorcolleges,universities,or university systems. (d) The board shall classifyandprescribe the role and scope for each public institution of higher education in Texas, shallmake such changes in classification or role and scope of each instituti~on

as it deems necessary, and shall hear applications from the institutions for changes in classificationor role and scope. The board shall make recommendation to the legislature with respect to maximum enrollment limits for each public institution of higher education in the State of Texas and m=Y recommend to the legislature maximum enrollment limits for any department,school,degreeprogram, or certificate program at any such institution.
(e) The board shall review periodically all degree and certificate programs offered by the institutions of higher education to assure that they meet the present and future needs of the state. The board shallalso order the initiation, consolidation, or elimination of degree or certificateprograms where that action is in the best interest of the institutions themselves or the generalrequirementsof the State of Texas, or when that action offers hope of achieving excellence by a concentration of available resources. No new department, school, degree program, or certificate program may be added at any institution of higher education except with specific prior approval of the board. Once approved, no department, school, degree program, or certificate program at any institution of higher education may be expanded to include subject matter courses that are outside of approved degree and certificate programs except with specific prior approval of the board. (Emphasisadded).

In our opinion, the Tarrant County Junior College Board is subordinate to the Coordinating Board of the Texas College and University System "in some of its important and principal duties." The Coordinating Board of the Texas College and University System "defines a junior college," and subsections (c), (d), and (e) of section 61.051 clearly empower the Coordinating Board of the Texas College and University System to directly supervise critical aspects of the administration of a junior college such as Tarrant County

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Junior College. In our opinion, itwould be improper forDr. Morrison to serve concurrent terms on the Coordinating Board of the Texas College and University System and the Tarrant County Junior College Board.
The incompatibilityof these two offices invites application of the common law doctrineofvacation:

Persons who accept and qualify for offices that are incompatiblewith offices they already hold ipso facto relinquish theirpriorposts.
Attorney General OpinionMW-170 (1980). See Purcellvet. Carrillo, 349 -- S.W.Zd 263 (Tex. Civ. App. - San Antonio 1961, Flores, 505 S.W.2d 406 (Tex.Civ. App. - SanAntonio 1973,writ r, n.r.e.);Attorney GeneralOpinionsbib'-170 (1980);H-155, H-117 (1973); no writ); Ramirez v.

ef'd

Accordingly, we have determined that Dr. Morrison's career in public officehas progressedas follows: in October 1976Dr. Morrison began a term on the Tarrant County Junior College Board; she relinquished this position when she accepted Governor Clements' appointment to the Coordinating Board of the Texas College and University System; she then relinquishedher post on the Coordinating Board of theTexas Collegeand University System when she acceptedher second term on the TarrantCountyJunior CollegeBoard. This lefther position on the CoordinatingBoard of the Texas Collegeand University Systemvacant.

We conclude that Mr. George Bramblett is theproperholder of the positionon the CoordinatingBoard of theTexas Collegeand University System.

SUMMARY

An individualmay not serve simultaneouslyas a member of the Coordinating Board of the Texas Collegeand UniversitySystem and a Junior College Board. Upon acceptance of a position on one of the boards, membership on the other board is relinquished.

- JIM MATTOX Attorney General of Texas

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TOM GREEN FirstAssistantAttorney General

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorney General

APPROVED: OPINION COMMITTEE
Rick Gilpin, Chairman Colin Carl SusanGarrison Jim Moellinger Nancy Sutton

P

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