ATTORNEY GENERAL OF TEXAS GREG ABBOTT


### January 18, 2008

The Honorable JeffWentworth Chair, Committee on Jurisprudence Texas State Senate Post Office Box 12068 Austin, Texas 78711

Dear Senator Wentworth: Opinion No. GA-0597 Re: Whether a member of the Village of WimberleyCityCouncilmay serve simultaneously on the board ofdirectors ofthe Wimberley Water Supply Corporation (RQ-0613-GA)

You ask whether a member of the Village of Wimberley City Council may serve simultaneously on the board ofdirectors ofthe Wimberley Water Supply Corporation. 1 

### You state that, atpresent, 

### "[0]ne member ofthe Village ofWimberley City Council holds aposition as a First Vice President ofthe Board ofDirectors ofthe Wimberley Water Supply Corporation; [and] the Village of Wimberley Mayor holds the position as President of the Board of Directors of the Wimberley Water Supply Corporation." Request Letter, supra 

### note 1, at 2. Because your letter suggests that both the mayor and the city council member are members ofthe city council, we refer to them throughout this opinion as council members. See ide 

### at 2. Your questions may implicate the constitutional prohibition ofdual office holding and the common-law doctrine of incompatibility. See ide 

### at 1-2. Article XVI, section 40 ofthe Texas Constitution does not allow an individual to hold more than one civil office ofemolument at the same time. See 

### TEX. CONST. art. XVI, § 40. The common-law doctrine ofincompatibilityprohibits 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 alderman are incompatible because the city's board ofaldermen have "various directory or supervisory powers exertable in respectto school property located withinthe city ortown and inrespectto the duties of school trustee performable within its limits"); Turner 

### v. Trinity Indep. Sch. Dist. Bd. ofTrs. , 

### 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ). The common-law doctrine of incompatibility also prohibits an individual "from appointing himselfto anotherpublic 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) (stating that

lSee Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable Greg Abbott, Attorney General ofTexas (Aug. 14, 2007) (on file withthe Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].The Honorable JeffWentworth

- Page 2 (GA-0597)

.officers who havethe appointingpowerare "disqualifiedfor appointmenttothe officesto whichthey may appoint"). The constitutional prohibition of dual office holding and the common-law doctrine of incompatibility pertain to the holding oftwo

### public offices. 

### See Tex. Att'y Gen. Ope No. DM-303 (1994) at 1 (stating that a county auditor's. position on a nonprofit housing corporation-a private venture-does notimplicate eitherarticleXVI, section40 ofthe Texas Constitutionorthe commonlaw doctrine of incompatibility); 

### see also Tilley 

### v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ

.. App.-Beaumont 1966, writ refd n.r.e.) (equating the meaning of "civil officer" in article XVI, section 40 with "public officer"); Tex. Att'y Gen. Ope No. GA-0307 (2005) at 3 (stating that the common-law doctrine ofincompatibility prevents one person from holding "two public offices" in certain circumstances). Thus, neither article XVI, section 40 nor the common-law doctrine of incompatibility applies ifthe water-supply-corporation positions at issue here are private offices. The Wimberley Water Supply Corporation is a private entity. 

### See N Alamo Water Supply Corp. v. 

### Willacy CountyAppraisalDist., 804 S.W.2d 894, 898-900 (Tex. 1991) (describing how a water supply corporation operates and concluding thatitis notapublic charity); 

### cfTEX. CONST. art. III, § 49-d-7(a) (permitting the Texas Water Development Board to provide bond proceeds to "various political subdivisions and bodies politic and corporate ofthe state and to nonprofit water supplycorporations"); Tex. Att'yGen. Ope No. JM-852 (1988) at4 (distinguishingbetweenbusiness entities and public institutions established by legislative action and governed by public officers exercising delegated legislative authority); Tex. Att'y Gen. LO-95-014, at 3-4 (defining "private corporation" and distinguishing it from a state agency). It was established as a nonprofit water supply corporation underWater Code chapter 67. 2 

### See Wimberley Water Supply Corporation By-Laws art. VIII (attached to Akers Letter

### supra note 2, at 7); 

### cfTex. Att'y Gen. Ope No. JC-0484 (2002) at 6 ("A nonprofit corporation is a private entity and is, therefore, distinguishable from a public entity."). And aposition on the board ofa nonprofitcorporation is aprivate office. 

### See Tex. Att'y Gen. Ope No. DM-194 (1992) at 3. Because members of the Wimberley Water Supply Corporation board ofdirectors do not hold public offices,3 neither the constitutional prohibition against dual office holding nor the common-law doctrine ofincompatibility precludes them from simultaneously holding positions on the Village ofWimberley City Council.

2See Letter from Honorable Sally Caldwell, City ofWoodcreek City Council, to Opinion Committee, Office ofthe Attorney General, at 4 (Sept. 15, 2007) [hereinafter Caldwell Brief]; Letter from Patty L. Akers, Village of Wimberley CityAttorney, to Honorable GregAbbott, AttorneyGeneral ofTexas, at 1 (Sept. 14,2007) [hereinafterAkers

.Letter]; BriefofWimberley Water Supply Corporation, at 1, attached to Letter from Michael D. Stevens, Stevens & Malone, L.L.P., to Honorable Greg Abbott, Attorney General ofTexas (Sept. 5,2007); see also TEX. WATERCODEANN. § 67.003(a) (Vernon 2004) (authorizing three Texas citizens to form a water supply corporation). 3In support ofa statement that the directors ofthe Wimberley Water Supply Corporation hold public offices, a briefwe have received cites Attorney General Letter Opinion 92-68, which states that a director ofthe EI Paso County Water Authority holds a public office and therefore cannot simultaneously serve on the Horizon City Town Council. See Caldwell Brief, supra note 2, at 1-2; Tex. Att'y Gen. LO-92-68, at 1-2. Unlike the Wimberley Water Supply Corporation, whichwas established in accordance withWaterCode chapter67, the EI Paso CountyWaterAuthoritywas createdby a special actthat specifically declared it a governmental agency. See Act ofAug. 8, 1961, 57thLeg., 1stC.S., ch. 32, § 1, 1961 Tex. Gen. Laws 136, 136. Consequently, Letter Opinion 92-68 is inapposite here.The Honorable JeffWentworth

- Page 3 (GA-0597)

Although the constitutional prohibition against dual office holding and the common-law doctrine of incompatibility do not apply, Local Government Code section 171.009 limits the authority ofa "local public official" to serve on the board ofa private nonprofit corporation. TEX. Lac. GOV'T CODE ANN. § 171.009 (Vernon 1999). A local public official for purposes ofsection 171.009 includes a member ofa municipal governing body, "whether elected, appointed, paid, or unpaid." 

### Id. § 171.001(1). Under section 171.009, it is "lawful for a local public official to serve as a member ofthe board ofdirectors ofprivate, nonprofit corporations when such officials receive no compensation or other remuneration from the nonprofit corporation or other nonprofit entity." 

### Id. § 171.009. Thus, a member ofthe Village ofWimberley City Council may serve on the board ofdirectors ofthe Wimberley Water Supply Corporation only ifthe city council member receives "no compensation or other remuneration" from the water supply corporation. See Tex. Att'y Gen. Ope Nos. GA-0084 (2003) at 7; DM-194 (1992) at 3-4. Conversely, a member ofthe water-supplycorporation board ofdirectors who receives "compensation or other remuneration" from the water supply corporation may not serve on the city council. We have not been informed as to whether the water-supply-corporation board members receive compensation or other remuneration for their service on the board. Ifthey do, they may not serve simultaneously on the Village ofWimberley City Council.

### The Honorable JeffWentworth

- Page 4 (GA-0597)



### SUMMARY UnderLocal GovernmentCode section 171.009, the mayorof the Village ofWimberley and amember ofthe Village ofWimberley City Council may serve simultaneously on the Wimberley Water Supply Corporation's board of directors only if they receive no compensation or other remuneration from the water supply corporation. Very truly yours,

KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee