ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Harold V. Dutton, Jr. 

Chair, Committee on Urban Affairs 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Dutton: 

March 28, 2011 

Opinion No. GA-0849 

Re: Authority of the general manager of a water 

district to serve as city manager of a home-rule 

city (RQ-0913-GA) 

Your predecessor asked whether the general manager of a water district may simultaneously 

serve as city manager of a home-rule city.' This dual office-holding question arises in the context 

of a plan to consolidate the City of Balch Springs (the "city") with the Dallas County Water Control 

and Improvement District No. 6 (the "water district")? An agreement under the Interlocal 

Cooperation Act provides that the general manager of the district will also serve as city manager for 

two years during the consolidation process. See Request Letter, supra note 1, at 1; Interlocal 

Agreement at 1 (attached to Request Letter); see also TEX. GOV'T CODE ANN. §§ 791.001-.034 

(West 2004 & Supp. 2010) (Interlocal Cooperation Act). We have been asked only whether the 

individual's dual service will violate the common-law doctrine of incompatibility. We express no 

opinion on the proposed consolidation of the city with the water district. 

The common-law doctrine of incompatibility bars dual public service in cases of selfappointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0307 (2005) 

at 3. Self-appointment incompatibility prevents one person from holding two offices, one of which 

is appointed by the other. See Ehlingerv. Clark, 8 S.W.2d 666, 674 (Tex. 1928) ("[AJII officers who 

have the appointing power are disqualified for appointment to the offices to which they may 

appoint."). Self-employment incompatibility prevents one person from holding an office and an 

'Letter from Honorable Yvonne Davis, Chair, Committee on Urban Affairs, Texas House of Representatives 

at 1 (Aug. 26, 2010) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) 

[hereinafter Request Letter]. The City of Balch Springs is a home-rule city. See CITY OF BALCH SPRINGS, TEx., CODE 

OF ORDINANCES, pI. I (2008) (Charter Preamble) (available at http://www.cityofhalchsprings.comllinks.htm) (last visited 

Mar. 24, 2011) [hereinafter City Charter]. 

'The water district converted to a municipal utility district in 1981 but did not change its name. See SENATE 

COMM. ON INTERGOVERNMENTAL RELATIONS, BIlLANAL YSIS, Tex. S.B. 461, 72d Leg. (1991) ("Background"); see also 

TEx. WATER CODE ANN. § 54.030(a) (West 2002) (authorizing water control and improvement districtto be converted 

into a municipal utility district). 

\ 
The Honorable Harold V. Dutton,Jr. - Page 2 (GA-0849) 

employment that the office supervises. Tex. Att'y Gen. Op. No. GA-0766 (2010) at I. Conflicting 

loyalties incompatibility "prohibits an individual from simultaneously holding two positions that 

would prevent him or her from exercising independent and disinterested judgment in either or both 

positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2. 

The board of the water district may employ a general manager and delegate to him "full 

authority to manage and operate the affairs of the district subject only to orders of the board." TEX. 

WATERCODEANN. § 49.056(a) (West 2008); see generally id. § 49.002(a) (stating that Water Code 

chapter 49 applies to all general and special law districts absent conflict with other Water Code 

provisions). The city manager of Balch Springs is appointed by the city council and is responsible 

to the city council for administering city matters. See City Charter, supra note I, at pt. I, art. N, 

§ 4.01 (describing duties of the city manager). Self-appointment incompatibility and selfemployment incompatibility do not prohibit dual service as general manager of the water district and 

city manager. Neither position has authority to appoint or supervise the other. 

Conflicting loyalties incompatibility applies only where each position constitutes an "office." 

Tex. Att'y Gen. Op. Nos. GA-0766 (2010) at 1-2, GA-0538 (2007) at 2, GA-0402 (2006) at 2, 

GA-0393 (2006) at 3. The determining factor that distinguishes a public officer from a public 

employee is "whether any sovereign function ofthe government is conferred upon the individual to 

be exercised by him for the benefit of the public largely independent of the control of others." Aldine 

Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (citation omitted). Prior opinions 

from this office have concluded that "a person is not ordinarily an officer if his or her actions are 

subject to control by a superior body, for in such instance, the person is not exercising authority 

largely independent of the control of others." Tex. Att'y Gen. Op. No. GA-0766 (2010) at 2, 

GA-0169 (2004) at 3. 

The board of a water district 

may employ or contract with a person to perform such services as 

general manager for the district as the board may from time to time 

specify. The board may delegate to the general manager full authority 

to manage and operate the affairs of the district subject only to orders 

of the board. 

TEX. WATER CODE ANN. § 49.056(a) (West 2008). The actions of the general manager of a water 

district are subject to control by the district board. See id. Accordingly, the general manager does 

not occupy an "office." Therefore, the conflicting loyalties incompatibility doctrine would not apply 

in this case. 

Your predecessor also asked whether Attorney General Opinion GA-0766, pertaining to the 

statutory authority by which a city manager of a general-law city was appointed by and served at the 

will of the municipal government body, could be applied to a home-rule city as well. See Request 

Letter, supra note 1, at 2; Tex. Att'y Gen. Op. No. GA-0766 (2010) at 2 (quoting Local Government 
The Honorable Harold V. Dutton, Jr. - Page 3 (GA-0849) 

Code sections 25.021 and 25.028). The city manager in that instance did not exercise power "largely 

independent of the control of others" and accordingly did not hold an office. See id. at 2 (quoting 

Aldine, 280 S.W.2d at 583). This analysis would apply to determine under the relevant city charter 

and ordinance provisions whether the city manager of a home-rule city was an officer. See generally 

Tex. Att'y Gen. Op. No. GA-0362 (2005) at 4-5 (concluding that a home-rule city may adopt a city 

charter provision that is stricter than the common-law doctrine of incompatibility). 

In the City of Balch Springs, for example, the city council appoints the city manager as the 

chief administrative and executive officer of the city, and he is "responsible to the City Council for 

the administration of all affairs of the City." City Charter, supra note 1, at pt. 1, art. IV, § 4.01 

(describing duties of the city manager). The city manager holds this position at the pleasure of 

the city council, and his appointment may be terminated at any time with or without cause. See id. 

§ 4.01(3). Thus, he is not an officer. The parties in this case should also consult any restrictions on 

dual employment included in the city charter or ordinances. 
The Honorable Harold V. Dutton, Jf, - Page 4 (GA-0849) 

SUMMARY 

The general manager of a water district does not occupy an 

office because his actions are subject to control by the water district 

board. The common-law doctrine of incompatibility does not 

prohibit the general manager of a water district from serving as a city 

manager. The city manager of a home-rule city who is appointed by 

and subject to termination by the city council is not an officer within 

the common-law doctrine of incompatibility. 

DANIEL T. HODGE 

First Assistant Attorney General 

DAVID J. SCHENCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chair, Opinion Committee 

Jason Boatright 

Assistant Attorney General, Opinion Committee