## 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 amember 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 amember 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. Ifshe iselected, her term ascounty 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, 540. Article XVI, section 40(a) provides that “[n]o person shall hold or exercise atthe same time, more than one civil office of emolument.” 

### Id. A county clerk receives a salary and thus holds an office ofemolument. See TEX.LOC.GOV’TCODEANN.5 152.011 (Vernon 1999) (commissioners court of acounty shall set the amount ofthe 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.CODEANN.5 11.061(d) (.Vemon 2006). As aresult, article XVI, section 40 does not bar a member of a school district board of trustees from simultaneous service as acounty clerk. We must also consider the common-law doctrine ofincompatibility, 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 aconflict of discretion or duty in respect to health, quarantine, sanitary, and tire prevention regulations. Ifthe same person could be a school trustee and amember ofthe city council or board of aldermen at the same time, school policies, in many important respects, would be subject to direction ofthe council or aldermen instead ,ofto that ofthe trustees. 

### Thomasv.Abernathy CountyLineIndep. 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 alocal governing board. But the concept has also been applied, ashere, where one ofthe offices does not constitute membership on alocal 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, at4. For similar reasons, adistrict judge isbarred from serving as atrustee of an independent school district located within hisjurisdiction. See Tex. Att’y Gen. LO-98-094, at 3. Moreover, ifthere is aclose 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 amember ofaschool district board oftrustees is not as amatter 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 ofacounty treasurer and found that, although anumber ofstatutes relate peripherally tothe duties oftreasurer with regard to school funds, these statutes “appear to prescribe purely ministerial duties.” 

### Id. at 3. The opinion also discussed section 113.902 ofthe Local Government Code, which requires acounty treasurer to “direct prosecution forthe recovery ofany debt owed tothe county,” and to “supervise the collection ofthe debt.” 

### Id. (quoting TEX.Lot. GOV’TCODEANN.§ 113.902 (a)). The opinion noted, however, that this duty was non-exclusive, and that ifit were determined that funds were owed to the countyThe 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 ofthe Texas Constitution might, in the long run, complicate such dual service. See 

### id. That provision effects the automatic resignation ofcertain county and district officers, including county clerks, who announce their candidacy or become a candidate for another office ofprofit 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 ofthe County and Commissioners Courts and recorder ofthe county 

### Id. art. V, 5 20. Various statutes prescribe other duties of a county clerk. Section 51.402 of the Government Code declares that a county clerk may ‘issue marriage licenses” and “take affidavits and depositions.” TEX.GOV’TCODEANN. § 51.402(a) (Vernon 2005). That statute also requires the clerk, “[o]n the last day ofeach term ofthe court, [to] make awritten statement oftines andjury fees received since the last statement.” 

### Id. 3 51.402(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, 

### interal& 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’TCODEANN.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.55 191.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 ascounty 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