.+- 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 7871 l-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 a groundwater conservation district with a population of 

less than 50,000 was eligible to serve as a member of the district’s board of directors. As we noted 

in the opinion, your particular concern was with the Cow Creek Groundwater Conservation District. 

The opinion correctly observed that section 36.05 1 (b) of the Water Code renders ineligible 

for appointment as a director of a groundwater conservation district, in any district 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 of that statute. 

We determined, however, that section 36.05 1 (b) did not repeal the common-law doctrine of 

incompatibility with regard to districts of less than 50,000 population. Common-law incompatibility 

has three aspects: self-appointment, self-employment, and conflicting loyalties. Tex. Att’y Gen. Op. 

Nos. JC-0054 (1999), JM-1266 (1990). Attorney General Opinion JC-0455 relied on the conflictingloyalties portion of the doctrine to conclude that a county commissioner in Kendall County was 

barred by the conflicting loyalties aspect of incompatibility from simultaneously serving as a member 

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, as well as other potential areas of conflict. 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 of the self-appointment doctrine. Although we were not informed 

that the members of the Kendall County Commissioners Court had appointed themselves, as a body, 

as the initial temporary directors of the 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 of being both a member of a body making the appointment and an appointee of that 

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 a result, it was unnecessary for us in Attorney General 

Opinion JC-0455 even to reach the issue of conflicting-loyalties incompatibility. Members of the 

commissioners court of a county are prohibited from appointing themselves to the board of directors 

of a groundwater conservation district, and consequently, such appointments would not take effect. 

The fact that such appointments were void ab initio means that we erred, in Attorney 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 of a second office operates as an automatic resignation from the first office,” and 

concluded that, “if a county~ commissioner . . . accepts a position as a director of a groundwater 

conservation district, he automatically vacates the office of county 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 a position: 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 of Kendall County, 
The Honorable Frank Madla - Page 3 (JC-0455A) 

SUMMARY 

That portion of Attorney General Opinion JC-0455 (2002) 

which implied that members of the 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