ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Harold V. Dutton, Jr. Chair, Committee on Urban Affairs Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910
Dear Representative Dutton: March 28, 2011

Opinion No. GA-0849
Re: Authority ofthe general manager ofa water district to serve as city manager of a home-rule city (RQ-0913-GA)

Yourpredecessor askedwhetherthe general managerofa waterdistrict may simultaneously serve as city manager of a home-rule city.' This dual office-holding question arises in the context ofa plan to consolidate the City ofBalch Springs (the "city") with the Dallas CountyWater Control and Improvement District No. 6 (the "water district")? An agreement under the Interlocal Cooperation Actprovides that the general manager ofthe 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 ofincompatibility. We express no opinion on theproposed consolidation ofthe 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'yGen. Op. No. GA-0307 (2005) at 3. Self-appointment incompatibilityprevents oneperson from holding two offices, one ofwhich is appointedbythe 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 ofRepresentatives at 1 (Aug. 26, 2010) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter]. The City ofBalch Springs is a home-rule city. See CITY OF BALCH SPRINGS, TEx., CODE OFORDINANCES, pI. I (2008) (CharterPreamble) (available athttp://www.cityofhalchsprings.comllinks.htm) (lastvisited 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 INTERGOVERNMENTALRELATIONS, BIlLANALYSIS, Tex. S.B. 461,72dLeg. (1991) ("Background"); see also TEx. WATER CODE ANN. § 54.030(a) (West2002) (authorizing water control and improvementdistrictto beconverted into a municipal utility district). 

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employmentthat 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 orher from exercising independent and disinterestedjudgmentin 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 ofthe district subject only to orders ofthe board." TEX. WATERCODEANN. § 49.056(a) (West 2008); see generally id. § 49.002(a) (stating thatWaterCode chapter 49 applies to all general and special law districts absent conflict with other Water Code provisions). The city manager ofBalch 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 selfemploymentincompatibilitydonotprohibitdual service as general managerofthewaterdistrictand city manager. Neither position has authority to appoint or supervise the other. Conflictingloyalties incompatibilityapplies onlywhere eachpositionconstitutes 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 beexercisedbyhimfor the benefit ofthepubliclargely independentofthe control ofothers." 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 ofa 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. Theboardmay delegate to the general managerfull authority to manage and operate the affairs ofthe district subject only to orders ofthe board.
TEX. WATER CODE ANN. § 49.056(a) (West 2008). The actions ofthe general manager ofa water district are subject to control by the district board. See id. Accordingly, the general manager does notoccupy an "office." Therefore, the conflictingloyalties incompatibilitydoctrinewouldnotapply in this case. Yourpredecessor also asked whether Attorney General Opinion GA-0766, pertainingto the statutory authority by which a city manager ofa general-law city was appointed byand served atthe will ofthe municipal government body, could be applied to a home-rule city as well. See Request Letter, supranote 1, at 2; Tex. Att'yGen. Op. No. GA-0766 (2010) at 2 (quoting Local GovernmentThe Honorable Harold V. Dutton, Jr.

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Code sections 25.021 and25.028). Thecitymanagerin that instance didnotexercisepower "largely independent ofthe control ofothers" 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 ordinanceprovisions whetherthe citymanagerofahome-rule citywas anofficer. 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 ofincompatibility).
In the City ofBalch Springs, for example, the city council appoints the city manager as the chiefadministrative and executive officer ofthe 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,

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### 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 ofa water district from serving as a city manager. The city manager ofa 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