                      February20, 1987



HonorableSteve W. Simons       OpinionNo. ~~-634
DistrictAttorney
303 City-CountyBuilding        Re: Whether a member of a school
El Paso, Texas 79901           board of trusteesmay serve as a city
                               alderman or councilmanfor an incor-
                               porated town situated within the
                               boundariesof the schooldistrict

Dear Mr. Simmons:

    You ask for our opinionon the followingquestion:

            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 simul-
         taneouslyas a city aldermanor councilmanof an
         incorporatedtown within the boundaries of the
         school district?

     One impedimentto dual office holding is the coeuaonlaw rule of
incompatibility; this doctrineprohibitsone person from holding two
offices if the duties are in conflict or if one is subordinateto
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 Opinion Nos. JM-133, JM-129 (1984);Letter Advisory Nos. 114
(1975);86 (1974). This officehas assertedthat

         in most instances,whether or not two positions
         are legally incompatibleIs a fact questionto be
         determinedinitiallyby those having supervision
         In one or both of the positionsheld by the person
         in questionand, ultimately,by the courts.

Letter AdvisoryNo. 62 (1973). Althoughthere have been few appellate
decisionsidentifyingwhich officesare incompatible,the questionyou
pose has been addressed in a judicial decision with facts closely
matchingthose In your opinionrequest.

     In Thomas V. AbernathyCounty IndependentSchoolDistrict,=,
the Incorporatedtown was within the school district territory. Two




                           p. 2870
HonorableSteve W. 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 interests of the two jurisdictionsraised
the potential for conflict. The court w*s especially sensitive to
this potentialfor conflictwhen 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 supervisorypowers
         exertable In respect to school property located
         within the city or town and in respect to the
         duties of school trustee performablewithin its
         Mmits - *,      there might well arise a conflict
         of discretion or duty In respect to health.
         quarantine,sanitary.and fire preventionregula-
         tions. See articles1015. 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 conclusionconcerninglncompatlbllty,  the
Thomas court established for the offices in question a safeguard
against conflicting duties attenuating faithful public service.
Grounded in this concern. the incompatibilitydoctrine "protectsthe
integrity of state institutionsby 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 independentschool
districtand aldermanor councilmanwere incompatiblepositions. &;
see also Letter AdvisoryNo. 149 (1977).

     Therefore,In our opinion,the lncompatibllltydoctrineprohibits
a member of the Board of Trustees of the Socorro IndependentSchool
Districtfrom simultaneously servingas aldermanor councilmanfor the
town of Socorro,which is situatedwithin the boundariesof the school
district.

    Althoughyour request does not indicatewhich of the two offices
In question was first occupied. we nonetheless advise you of the
common law principleof vacation:

            If a person holding an office Is elected or
         appointedto another (wherethe two officescannot
         be legallyheld by the same person) and he accepts




                           p. 2871
                                                                      L.
EonorableSteve W. Siamons- Page 3     (JK-634)




         and qualifies as to the second, such acceptance
         and qualiflcatlonoperate, Ipso facto. as a re-
         sign&ion of the former office.

Pruitt v. Glen Rose IndependentSchoolDistrictNo. 1, 84 S.W.2d 1004,
                        -
1006, opiniou adopted (Tax.                         also Thomas v.
AbernathyCounty Line IndependentSchool District, 290 S.W. at 153.
In other words, given two incompatibleoffices, 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 individualinvolved here
would eithervacate the office of aldermenor councilmanupon assuming
the office of trustee,or vacate the office of trusteeupon assuming
the office of aldermanor councilman.

     In your brief, you Inquirewhether article XVI. section 40, of
the Texas Constitutionapplieshere. Since the common iaw doctrineof
incompatibilityIs dlsposltiveof 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.




                                       J I-M MZTTOX
                                       AttorneyGeneralof Texas

JACX HIGHTOWER
First AssistantAttorneyGeneral

UARYKELLER
F,xecutive
         AssistantAttorneyGeneral

RICK GILPIN
Chairman,OpinionCommittee
Preparedby Jeff Millstone
AssistantAttorney General




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