February20, 1987

Honorable

SteveW. Simons District

Attorney 303 City-County

Building El Paso, Texas 79901 OpinionNo. ~~-634
Re: Whethera member of a school board of trustees

may serve as a city aldermanor councilman for an incorporated town situated within the boundaries

of the schooldistrict
Dear Mr. Simmons:
You ask for our opinionon the following question: Whether a member of a board of trustees [of a school district] governed by section 23.01 gt 5. of the Education Code, may serve simultaneously

as a city aldermanor councilman of an incorporatedtown within the boundaries of the schooldistrict?
One impediment

to dual office holding is the coeuaon law rule of incompatibility;

this doctrineprohibitsone person from holding two offices if the duties are in conflict or if one is subordinate to **the** other. See Thomas V. Abernathy County Line IndependentSchool District. 290s.W. 152 (Tex. Comm'n App. 1927); State V. Martin, 51 S.W.2d 815 (Ten. Civ. App. - San Antonio 1932, no writ); Attorney General OpinionNos. JM-133, JM-129 (1984);Letter AdvisoryNos. 114 (1975);

86 (1974). This officehas asserted that in most instances, whether or not two positions are legally incompatible Is a fact questionto be determinedinitially by those having supervision In one or both of the positions held by the person in question

and, ultimately,

by the courts.
LetterAdvisory

No. 62 (1973). Althoughtherehave been few appellate decisions

identifying

which officesare incompatible, the question

you pose has been addressed in a judicial decision with facts closely matchingthose In your opinionrequest.
In ThomasV. Abernathy County Independent SchoolDistrict,

=, the Incorporated

town was within the school district territory. Two

p. 2870Honorable SteveW. Simmons- Page 2 (JM-634)

school trustees were subsequentlyelected to the office of town alderman. Since the boundariesof the school district and the city overlapped.

the competing interestsof the two jurisdictions raised the potential for conflict. The court w*s especially sensitive to this potentialfor conflict when it concluded:
In our opinion the offices of school trustee and aldermen are Incompatible; for under our system there are in the city council or board of aldermenvarious 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 Mmits - *, theremight well arise a conflict of discretion or duty In respect to health. quarantine,

sanitary.

and fire preventionregulations. See articles 1015. 1067, 1071.R. S. 1925. If the same person could be a school trusteeand a member of the city councilor board of aldermenat the same time, school policies,in many important respects,would be subject to discretionof the council or aldermen instead of to that of the trustees. Id. at 153. In reachingIts conclusion concerning

lncompatlbllty,

the Thomas court established for the offices in question a safeguard against conflicting duties attenuating faithful public service. Grounded in this concern. the incompatibility doctrine "protectsthe integrity of state institutions by promoting impartial service by public officials." Attorney General Opinion m-203 (1984) at 3. A city council or board of aldermen thus has powers and duties which conflict with the legal role of school trustees. Accordingly,the court held that the public officesof trusteeof an independent school districtand alderman or councilman

were incompatible

positions. &; see also Letter Advisory No. 149 (1977). Therefore,

In our opinion,the lncompatiblllty doctrine

prohibits a member of the Board of Trustees of the Socorro Independent School Districtfrom simultaneously servingas alderman or councilman

for the town of Socorro,

which is situated

within the boundaries of the school district. Althoughyour requestdoes not indicate which of the two offices In question was first occupied. we nonetheless advise you of the common law principle of vacation: If a person holding an office Is elected or appointed

to another (wherethe two officescannot be legally

held by the same person) and he accepts

p. 2871 L.Eonorable SteveW. Siamons- Page 3 (JK-634)

and qualifiesas to the second, such acceptance and qualiflcatlon

operate, Ipso facto. as a resign&ion of the former office. Pruittv. Glen Rose Independent SchoolDistrict

No. 1, 84 S.W.2d 1004, 1006, opiniou adopted (Tax. - also Thomas v. AbernathyCounty Line Independent School District, 290 S.W. at 153. In other words, given two incompatible offices, the occupant of one office who assumes anothervi11 be held to have vacated or resigned the first. See Attorney General Opinion m-133 (1984); Letter Advisory No. 64(1973). As a result. the individualinvolvedhere would eithervacate the office of aldermen or councilman

upon assuming the office of trustee,or vacate the office of trusteeupon assuming the office of alderman or councilman.
In your brief, you Inquirewhether article XVI. section 40, of the Texas Constitution applies

here. Since the common iaw doctrine of incompatibility

Is dlsposltive

of the issue raised In your opinion request,

we need not reach the constitutional question.
SUMMARY The common law rule of incompatibility prevents one person from serving as trustee of the Soccoro IndependentSchool District and at the same time serve as alderman or councilman of the town of Socorro.

JACX HIGHTOWER First Assistant

Attorney

General
UARYKELLER F,xecutive

Assistant

Attorney

General
RICK GILPIN Chairman,

OpinionCommittee Prepared

by Jeff Millstone Assistant

Attorney General J I-M MZTTOX Attorney

Generalof Texas

p. 2872