February 20, 1987 

Honorable Steve W. Simons 

District Attorney 

303 City-County Building 

El Paso, Texas 79901 

Opinion No. ~~-634 

Re: Whether a member of a school 

board of trustees may serve as a city 

alderman or councilman for an incorporated town situated within the 

boundaries of the school district 

Dear Mr. Simmons: 

You ask for our opinion on 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 alderman or councilman of an 

incorporated town within the boundaries of the 

school district? 

One impediment to dual office holding is the coeuaon law rule of 

incompatibility; this doctrine prohibits one 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 Independent School 

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 Opinion Nos. JM-133, JM-129 (1984); Letter Advisory Nos. 114 

(1975); 86 (1974). This office has asserted that 

in most instances, whether or not two positions 

are legally incompatible Is a fact question to be 

determined initially by those having supervision 

In one or both of the positions held by the person 

in question and, ultimately, by the courts. 

Letter Advisory No. 62 (1973). Although there have been few appellate 

decisions identifying which offices are incompatible, the question you 

pose has been addressed in a judicial decision with facts closely 

matching those In your opinion request. 

In Thomas V. Abernathy County Independent School District, =, 

the Incorporated town was within the school district territory. Two 

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

school trustees were subsequently elected to the office of town 

alderman. Since the boundaries of the school district and the city 

overlapped. the competing interests of the two jurisdictions raised 

the potential for conflict. The court w*s especially sensitive to 

this potential for 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 

aldermen various 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 - *, there might well arise a conflict 

of discretion or duty In respect to health. 

quarantine, sanitary. and fire prevention regulations. See articles 1015. 1067, 1071. R. S. 1925. 

If the same person could be a school trustee and a 

member of the city council or board of aldermen at 

the same time, school policies, in many important 

respects, would be subject to discretion of the 

council or aldermen instead of to that of the 

trustees. 

Id. at 153. In reaching Its 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 "protects the 

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 offices of trustee of an independent school 

district and 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 

District from simultaneously serving as alderman or councilman for the 

town of Socorro, which is situated within the boundaries of the school 

district. 

Although your request does 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 (where the two offices cannot 

be legally held by the same person) and he accepts 

p. 2871 

L. 
Eonorable Steve W. Siamons - Page 3 (JK-634) 

and qualifies as to the second, such acceptance 

and qualiflcatlon operate, Ipso facto. as a resign&ion of the former office. 

Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004, 

1006, opiniou adopted (Tax. - also Thomas v. 

Abernathy County Line Independent School District, 290 S.W. at 153. 

In other words, given two incompatible offices, the occupant of one 

office who assumes another vi11 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 individual involved here 

would either vacate the office of aldermen or councilman upon assuming 

the office of trustee, or vacate the office of trustee upon assuming 

the office of alderman or councilman. 

In your brief, you Inquire whether 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 

Independent School 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, Opinion Committee 

Prepared by Jeff Millstone 

Assistant Attorney General 

J I-M MZTTOX 

Attorney General of Texas 

p. 2872