### THE ATTORNEY GENERAL OF 'TEXAS

August 23, 1989

Honorable Rene Guerra Opinion No. ~~-1887 Criminal District Attorney Hidalgo County Courthouse Re: Whether the common lawdocEdinburg, Texas 78539 trine of incompatibility may be overcome by acharter provision of ahome rule citywhich specifically permits such dual office holding (RQ-1675)

DearMr. Guerra:

youhave requested our opinion as to whether a home rule citymay overcome the common lawdoctrine of incompat**ibility by**  means of aprovision in its city charter.
The charter of the City ofAlamo, a home rule city, provides inpertinent part inarticle 1.1,section 5:

[T]heMayor, with the approval of at least two (2)of the four (4)Commissioners, may serve as CityManager at a salary that is set and approved by at least two (2)of the four (4)Commissioners; provided that ifhe/she is serving as CityManager, he or shewill not receive compensation for services asMayor.
Article IV, section 1,of the charter provides in pertinent part:
The City Manager shall be responsible to the

Board of Commissioners for the efficient administration of the affairs of the City of Alamo and shallhold office at the pleasure of the Board of Commissioners. The City Manager may be removed from office by majority vote of all the **members** of the Board of Commissioners. The action of the Board of Commissioners suspending or removing the City Manager shall be final.
Thus, asyou indicate, the charter specifically makes the citymanager accountable to theboard of commissioners, of which themayor isa **member.** On the other hand, the charter also specifically permits "the mayor, with the approval of

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at least two of the four commissioners,VVto "serve as** city manager.
Absent the language of the city charter provision, it isabundantly clear that a single individual may not serve simultaneously intwo positions inwhich one is accountable to the other. Letter Opinion 89-57 (1989);Letter Advisory No. 114 (1975). This conclusion isbased upon the longstanding common lawdoctrine of incompatibility. &= Thomas V. 2 ernat Co nt Dist., 290 S.W. 152 (Tex.Comm'n App. 1927, judgmt adopted). The question here iswhether a city charter provision may overcome this common-law rule.
Under the home rule amendment to the Texas Constitution, article XI, section 5, a home rule city has all those powers which are not inconsistent with the constitution or general laws of the state. &lDha 1, 411 S.W.2d 417 (Tex. Civ. App.), cert., 389U.S. 1005 (1967). A home rule city need not look to the legislature for aparticular grant of power. Rather, itneed concern itself onlywith limitations imposed on itspower. Lower Colorado River Auth. v. Citv of San, 523 S.W.2d 641, ( 543 ITex. 1975). must . with Furthermore. any limitation thereon appear unmistakable clarity. Id. at 645.
The only such qqlimitationfi' which might restrict the city's authority in this instance is section 5.001 of the Civil Practices &Remedies Code,which provides:

The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state.

In our opinion, this provision is not really a *'limitation." Itdoes not indicate a legislative intent to make common law incompatibility the absolute law in this state, but only inthe absence of other authority to the contrary. In this instance, we believe that a city charter provision which isnot contrary to a svecific state law, or which does not purport to act in a field which has been fully occupied by the legislature, is itself sufficient to overcome the common law.

InDal1 v 8Terminal Co.v.

asR . Bankston, 33 S.W.2d 500 (Tex.Civ. App. -Dallas 1930), 51 rev'd on other srounds, S.W.2d 304 (Tex. Comm'n App. 1932), holding approved, several ordinances required that a streetcar operator, inter

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gJ,.&&keep a "vigilant watch" and that he be prepared to stop in the shortest time and space possible upon any appearance ofdanger. The ordinances were somewhat broader than the standard of care required **by** common law. Nevertheless, the court, citing Citv ofDallas v. Gila, 199 S.W. 1144 (Tex.Civ. APP. -Dallas 1917,writ ref'd), held that if an ordinance is passed under constitutional and statutory authority, it repeals the common law in all respects inwhich inconsistencies exist. DB, suvra, at 502; M,

see 564 S.W.2d 471 (Tex. Civ. APP. -Dallas 1978,nowrit). But enusa Gv.f Houston, 10 S.W.2d 772 (Tex.Civ. App. -Galveston 1928, no writ) (city ordinance imposing liability on owner of a rental automobile void because it contravenes common law, questioned by Supreme Court in citv of COrDUS Christi v. Texas Driverless Co., 190 S.W.2d 484 (Tex. 1945)). Likewise, in the situation you pose, theAlamo city charter has specifically provided for the contingency that a single individual may serve simultaneously asbothmayor and citymanager. The conditions necessary for the holding of both positions are detailed in the charter, as well as provisions for themayor's removal as citymanager. In this instance, webelieve that the charter issufficient to overcome the common law doctrine of incompatibility. As a result, there isno impediment to themayor ofAlamo holding the position of city manager under the circumstances provided inthe charter.

SUMMARY
Under the terms of the charter of the City ofAlamo, themayor may, incertain circumstances, simultaneously serve as city manager. The common lawdoctrine of incom-

_ patibility does not prevail over the charter provision. I

JIM MATTOX - Attorney General of Texas

MARY KELLER First Assistant Attorney General
LQUMCCREARY Executive Assistant Attorney General

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JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee Prepared by Rick Gilpin Assistant Attorney General

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