ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 25,2006 

The Honorable Jeff Wentworth 

Chair, Committee on Jurisprudence 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 7871 l-2068 

Opinion No. GA-0468 

Re: Whether a member of a school district board 

of trustees may simultaneously serve as county 

clerk of the county in which the school district is 

located (RQ-0470-GA) 

Dear Senator Wentworth: 

You ask whether a member of a school district board of trustees may simultaneously serve 

as county clerk of the county in which the school district is located.’ 

You indicate that a trustee of the San Marcos Consolidated Independent School District is 

a candidate for county clerk of Hays County in the November election. See Request Letter, supra 

note 1, at 1. If she is elected, her term as county clerk would begin on January 1,2007. Id. Her term 

as school trustee expires in May 2008. See id. In determining whether she may serve in both offices 

simultaneously, we must address article XVI, section 40 of the Texas Constitution as well as the 

common-law doctrine of incompatibility. See TEX. CONST. art. XVI, 5 40. 

Article XVI, section 40(a) provides that “[n]o person shall hold or exercise at the same time, 

more than one civil office of emolument.” Id. A county clerk receives a salary and thus holds an 

office of emolument. See TEX. LOC. GOV’T CODE ANN. 5 152.011 (Vernon 1999) (commissioners 

court of a county shall set the amount of the compensation for county and precinct officers). On the 

other hand, a school district trustee “serve[s] without compensation,” and thus does not hold an 

offtce of emolument. See TEX. EDUC. CODE ANN. 5 11.061(d) (.Vemon 2006). As a result, article 

XVI, section 40 does not bar a member of a school district board of trustees from simultaneous 

service as a county clerk. 

We must also consider the common-law doctrine of incompatibility, which has three aspects: 

self-appointment, self-employment, and conflicting loyalties. Tex. Att’y Gen. Op. No. GA-0015 

(2003) at 1. Because a county clerk neither appoints nor employs a school trustee, and a school 

‘See Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to 

Honorable Greg Abbott, Attorney General ofTexas (Mar. 22,2006) (on file with the Opinion Committee, also available 

a~ http:/lwww.oag.state.tx.us) [hereinafter Request Letter]. 
The Honorable Jeff Wentworth - Page 2 (GA-0468) 

trustee neither appoints nor employs a county clerk, the first two aspects of the doctrine are not 

applicable to the situation you pose. The third aspect ofthe doctrine+onflicting loyalties-derives 

from a 1927 opinion of the Texas Commission of Appeals that found the offices of school trustee 

and city alderman incompatible: 

In our opinion the offices of school trustee and alderman are 

incompatible; for under our system 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 tire 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. 

Thomas v. Abernathy County Line Indep. Sch. Disk, 290 S.W. 152,153 (Tex. Comm’n App. 1927, 

Judgm’t adopted) (citation omitted). 

It is well established that both positions must be offices in order for conflicting loyalties 

incompatibility to be applicable. See Tex. Att’y Gen. Op. Nos. GA-0350 (2005) at 4, GA-0273, 

(2004) at 3, JM-1266 (1990) at 4. A substantial majority of attorney general opinions involving 

conflicting loyalties incompatibility address situations in which both offices constitute membership 

on a local governing board. But the concept has also been applied, as here, where one of the offices 

does not constitute membership on a local governing board but involves some other official position. 

The attorney general has said, for example, that a county attorney may not serve on the board of 

trustees of a school district located in his county because a county attorney is authorized to 

investigate matters and initiate actions involving school trustees. See Tex. Att’y Gen. LO-95-029, 

at 4. For similar reasons, a district judge is barred from serving as a trustee of an independent school 

district located within his jurisdiction. See Tex. Att’y Gen. LO-98-094, at 3. Moreover, if there is 

a close and frequent relationship between a school district and a sheriffs office, particularly where 

the district embraces an unincorporated area of the county, a sheriff may not simultaneously serve 

as a school trustee of that district. Tex. Att’y Gen. Op. No. GA-0328 (2005) at 4. 

On the other hand, this office has declared that a member of a school district board oftrustees 

is not as a matter of law prohibited from simultaneously holding the office of county treasurer. See 

Tex. Att’y Gen. Op. No. JC-0490 (2002) at 1. That opinion reviewed the duties of a county treasurer 

and found that, although a number of statutes relate peripherally to the duties of treasurer with regard 

to school funds, these statutes “appear to prescribe purely ministerial duties.” Id. at 3. The opinion 

also discussed section 113.902 of the Local Government Code, which requires a county treasurer to 

“direct prosecution for the recovery of any debt owed to the county,” and to “supervise the collection 

of the debt.” Id. (quoting TEX. Lot. GOV’T CODE ANN. § 113.902 (a)). The opinion noted, however, 

that this duty was non-exclusive, and that if it were determined that funds were owed to the county 
The Honorable Jeff Wentworth - Page 3 (GA-0468) 

by the school district, the commissioners court would be the proper authority to initiate suit to 

recover those funds. Id. at 4. Accordingly, this office concluded that a county treasurer was not 

barred as a matter of law from simultaneously serving as a school district trustee. See id. The 

opinion cautioned, however, that article XVI, section 65 of the Texas Constitution might, in the long 

run, complicate such dual service. See id. That provision effects the automatic resignation of certain 

county and district officers, including county clerks, who announce their candidacy or become a 

candidate for another office of profit or trust “at any time when the unexpired term of the [county 

or district] office then held shall exceed one (1) year.” See TEX. CONST. art. XVI, 5 65(b). 

We must now determine whether holding the office of county clerk is incompatible with 

service on a school district board of trustees. The Texas Constitution provides, in relevant part: 

Sec. 20. There shall be elected for each county, by the qualified 

voters, a County Clerk, who shall hold.his office for four years, who 

shall be clerk of the County and Commissioners Courts and recorder 

of the county 

Id. art. V, 5 20. Various statutes prescribe other duties of a county clerk. Section 5 1.402 of the 

Government Code declares that a county clerk may ‘issue marriage licenses” and “take affidavits 

and depositions.” TEX. GOV’T CODE ANN. § 51.402(a) (Vernon 2005). That statute also requires 

the clerk, “[o]n the last day of each term of the court, [to] make a written statement of tines and jury 

fees received since the last statement.” Id. 3 5 1.402(b). A county clerk has, in addition, prescribed 

duties under the Local Government Code. She serves, for example, as the clerk of the 

co&issioners court, which requires, inter al& that she “keep the court’s books, papers, records, 

and effects” and “issue the notices, wrns, and process necessary for the proper execution of the 

court’s powers and duties.” TEX. Lot. GOV’T CODE ANN. 3 81.003(a) (Vernon Supp. 2006). Other 

duties relate to the collection of fees for filing, issuing, and certifying various documents, the 

impanelingofjuries, and the swearingofwitnesses. See id. $5 118.011, ,051 (Vernon 1999 & Supp. 

2006). Finally, the clerk has numerous duties relating to the recording of various documents and 

instruments, including deeds, mortgages,~subdivision plats, and military discharges. Id. 5 5 191 .OOl , 

,004, 192.001, .0015, ,002. 

None of the aforementioned responsibilities indicate that there is any conflict between the 

duties of a county clerk and the duties exercised by an independent school district trustee. We 

conclude, therefore, that a member of a school district board of trustees is not as a matter of law 

prohibited from simultaneously serving as county clerk of a county in which the school district is 

located. As stated in Attorney General Opinion JC-0490, however, we caution that article XVI, 

section 65 of the Texas Constitution may ultimately complicate such dual service. See Tex. Att’y 

Gen. Op. No. JC-0490 (20.02) at 4. 
The Honorable Jeff Wentworth - Page 4 (GA-0468) 

SUMMARY 

A member of a school district board of trustees is not as a 

matter of law prohibited from simultaneously serving as county clerk 

of a county in which the school district is located. 

Very truly yours, 

RENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee