THE ATTORNEY GENERAL 

OF 'TEXAS 

August 23, 1989 

Honorable Rene Guerra Opinion No. ~~-1887 

Criminal District Attorney 

Hidalgo County Courthouse Re: Whether the common law docEdinburg, Texas 78539 trine of incompatibility may be 

overcome by a charter provision 

of a home rule city which specifically permits such dual office 

holding (RQ-1675) 

Dear Mr. Guerra: 

you have requested our opinion as to whether a home 

rule city may overcome the common law doctrine of incompatibility by means of a provision in its city charter. 

The charter of the City of Alamo, a home rule city, 

provides in pertinent part in article 1.1, section 5: 

[T]he Mayor, with the approval of at least 

two (2) of the four (4) Commissioners, may 

serve as City Manager at a salary that is set 

and approved by at least two (2) of the four 

(4) Commissioners; provided that if he/she is 

serving as City Manager, he or she will not 

receive compensation for services as Mayor. 

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 shall hold 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, as you indicate, the charter specifically makes the 

city manager accountable to the board of commissioners, of 

which the mayor is a member. On the other hand, the charter 

also specifically permits "the mayor, with the approval of 

p. 5688 
Honorable Rene Guerra - Page 2 (JM-1087) 

at least two of the four commissioners,VV to "serve as** city 

manager. 

Absent the language of the city charter provision, it 

is abundantly clear that a single individual may not serve 

simultaneously in two positions in which one is accountable 

to the other. Letter Opinion 89-57 (1989); Letter Advisory 

No. 114 (1975). This conclusion is based upon the longstanding common law doctrine of incompatibility. &= Thomas 

V. 2 ernat Co nt Dist., 290 S.W. 152 

(Tex. Comm'n App. 1927, judgmt adopted). The question here 

is whether 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., 389 U.S. 1005 (1967). A home rule city 

need not look to the legislature for a particular grant of 

power. Rather, it need concern itself only with limitations 

imposed on its power. 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." It does not indicate a legislative intent to 

make common law incompatibility the absolute law in this 

state, but only in the absence of other authority to the 

contrary. In this instance, we believe that a city charter 

provision which is not 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. 

In Dal1 as R v . 8 Terminal Co. v. Bankston, 33 S.W.2d 500 

(Tex. Civ. App. - Dallas 1930), rev'd on other srounds, 51 

S.W.2d 304 (Tex. Comm'n App. 1932), holding approved, 

several ordinances required that a streetcar operator, inter 

p. 5689 
Honorable Rene Guerra - Page 3 (JM-1087) 

gJ,.&& keep a "vigilant watch" and that he be prepared to 

stop in the shortest time and space possible upon any 

appearance of danger. The ordinances were somewhat broader 

than the standard of care required by common law. 

Nevertheless, the court, citing Citv of Dallas 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 in which inconsistencies exist. DB, suvra, 

at 502; see M, 564 S.W.2d 471 (Tex. Civ. 

APP. - Dallas 1978, no writ). But Gv.f enusa 

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 C o., 190 S.W.2d 484 (Tex. 

1945)). 

Likewise, in the situation you pose, the Alamo city 

charter has specifically provided for the contingency that a 

single individual may serve simultaneously as both mayor and 

city manager. The conditions necessary for the holding of 

both positions are detailed in the charter, as well as 

provisions for the mayor's removal as city manager. In this 

instance, we believe that the charter is sufficient to overcome the common law doctrine of incompatibility. As a 

result, there is no impediment to the mayor of Alamo holding 

the position of city manager under the circumstances 

provided in the charter. 

SUMMARY 

Under the terms of the charter of the City 

of Alamo, the mayor may, in certain circumstances, simultaneously serve as city 

manager. The common law doctrine of incom- _ 

patibility does not prevail over the charter 

provision. I 

JIM MATTOX - 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LQU MCCREARY 

Executive Assistant Attorney General 

p. 5690 
Honorable Rene Guerra - Page 4 (JM-1087) 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 5691