.+- OFFICE OF THE ATTORNEY GENERAL
. STATE OF TEXAS

JOHN CORNYN

September 20,2002

The Honorable Frank Madla Chair, Senate Committee on Intergovernmental Relations Texas State Senate P.O. Box 12068 Austin, Texas 7871l-2068 Opinion No. JC-0455A Re: Clarification of Attorney General Opinion JC-0455 (2002)

Dear Senator Madla: In Attorney General Opinion JC-0455 (2002), we were asked whether a member of a governmental body that is located within agroundwater conservation district with apopulation of less than 50,000 was eligible to serve as amember ofthe district’s board ofdirectors. As we noted inthe opinion, your particular concern was with the Cow Creek Groundwater Conservation District. The opinion correctly observed that section 36.05 1(b) ofthe Water Code renders ineligible for appointment asadirector ofagroundwater conservation district, inanydistrict containing 50,000 or more persons, any member of the governing body of another political subdivision. Because districts with a population of less than 50,000 are expressly exempted from section 36.051(b), a member of another governmental body in a district of less than 50,000 population is not rendered ineligible to serve by virtue ofthat statute. We determined, however, that section 36.05 1(b) didnot repeal the common-law doctrine of incompatibility with regard todistricts oflessthan 50,000 population. Common-law incompatibility has three aspects: self-appointment, self-employment, andconflicting loyalties. Tex. Att’y Gen. Op. Nos. JC-0054 (1999), JM-1266 (1990). Attorney General Opinion JC-0455 relied ontheconflictingloyalties portion of the doctrine to conclude that a county commissioner in Kendall County was barred bytheconflicting loyalties aspect ofincompatibility from simultaneously serving asamember of the Cow Creek Groundwater Conservation District because of overlapping geographical boundaries between the Cow Creek Groundwater Conservation District and Kendall County, overlapping duties with regard to water, aswell as other potential areas ofconflict. In your request letter, however, you asked “whether elected officials of a governmental body, in a district with a population of less than 50,000, who appoint each other to a groundwater conservation district violate[] state law and[/]or Attorney General Opinion Letters LO-93-70 and LO-94-020.“’ The

‘Letter from Honorable Frank Madla, Chair, Senate Committee on Intergovernmental Relations, to Honorable John Cornyn, Texas Attorney General at 1(Aug. 23,200l) (on file with Opinion Committee).The Honorable Frank Madla - Page 2 (JC-0455A)

opinion failed to address the effect ofthe self-appointment doctrine. Although we were not informed that the members ofthe Kendall County Commissioners Court had appointed themselves, as abody, asthe initial temporary directors ofthe district until after JC-0455 was issued, the request letter did in fact ask about self-appointment in general terms. Self-appointment incompatibility derives from the Texas Supreme Court’s decision in Ehlinger v. Clark, 8 S.W.2d 666 (1928), in which the court observed that “because of the obvious incompatibility ofbeing both amember of abody making the appointment and an appointee ofthat body that the courts have with great unanimity throughout the country declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint.” Ehlinger, 8 S.W.2d at 674. As aresult, it was unnecessary for us in Attorney General Opinion JC-0455 even to reach the issue of conflicting-loyalties incompatibility. Members ofthe commissioners court ofacounty areprohibited from appointing themselves totheboard ofdirectors of agroundwater conservation district, and consequently, such appointments would not take effect. The fact that such appointments were void abinitiomeans that we erred, inAttorney General Opinion JC-0455, in considering the effect of such appointments with regard to the Cow Creek Groundwater Conservation District. We noted there “the well-established principle that qualification for and acceptance ofasecond office operates as anautomatic resignation from the first office,” and concluded that, “if a county~commissioner
. . . accepts aposition as a director of a groundwater conservation district, he automatically vacates the office ofcounty commissioner.” Tex. Att’y Gen. Op. No. JC-0455 (2002) at 6. As we have indicated previously, however, a county commissioner in Kendall County could not have accepted such aposition: he was ineligible for the appointment. It follows that, because the purported appointments at issue here were void, the members of the Commissioners Court of Kendall County, in attempting to make those appointments, would not thereby vacate their respective offices on the Commissioners Court ofKendall County,The Honorable Frank Madla - Page 3 (JC-0455A)

SUMMARY That portion of Attorney General Opinion JC-0455 (2002) which implied that members ofthe Kendall County Commissioners Court vacated their county commissioner offices when they attempted to appoint themselves as temporary directors of the Cow Creek Groundwater Conservation District was in error. Such appointments violate the self-appointment aspect of the common-law doctrine of incompatibility and are thus void ab initio.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General NANCY FULLER Deputy Attorney General - General Counsel SUSAN DENMON GUSKY Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee