                               ATTORNEY GENERALOF                         TEXAS
                                             GREG       ABBOTT



                                               January 11,2006



The Honorable Robert Duncan                             Opinion No. GA-0393
Chair, Committee on State Affairs
Texas State Senate                                      Re: Whether a municipal chief of police may
Post Office Box 12068                                   simultaneously serve as a trustee of an independent
Austin, Texas 7871 l-2068                               school district located within the geographical
                                                        boundaries of the municipality (RQ-0368-GA)

Dear Senator Duncan:

        You ask whether a municipal chief of police may simultaneously serve as a trustee of an
independent school district located within the geographical boundaries of the municipality.’

        Your question relates specifically to the Chief of Police of Hale Center, who was elected to
membership on the Board of Trustees of the Hale Center Independent School District on May 7,
2005. The individual in question has not yet accepted his office as a member of the board. See
Request Letter, supra note 1, at 1. A brief received from the attorney for the city indicates that the
City of Hale Center is a Type A general-law municipality.* Such a municipality is governed by
chapter 22 of the Local Government Code. TEX.LOC.GOV’T CODE ANN. $22.001 (Vernon 1999).
The governing body of a Type A general-law municipality “consists of a mayor and five aldermen,”
Id. 5 22.03 l(b). “The mayor is the chief executive officer of the municipality” and is required to
“perform the duties and exercise the powers prescribed by the governing body of the municipality.”
Id. 9 22.042(a). You inform us that the chief of police is not an officer under section 22.071 of the
Local Government Code, which authorizes a municipal governing body to establish additional




         ‘See Letter from Honorable Robert Duncan, Chair, Senate Committee on State Affairs, to Honorable Greg
Abbott, Attorney General of Texas (July 28, 2005) (on file with Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].

        2Brief from Todd M. Hurd, Assistant City Attorney, City of Hale Center, to Nancy S. Fuller, Chair, Opinion
Committee, Office of the Attorney General ofTexas (Sept. 22,2005) (on file with Opinion Committee) [hereinafter Hurd
Briefl.
The Honorable Robert Duncan         - Page 2                  (GA-0393)




municipal offices.3 Request Letter, supra note 1, at 4. A brief received from the City Attorney
indicates that the chief of police “serves at the pleasure of the governing body.” See Hurd Brief,
supra note 2.

        Article XVI, section 40 of the Texas Constitution provides that “[n]o person shall hold or
exercise at the same time, more than one civil office of emolument.” TEX. CONST. art. XVI, 5 40.
A member of the board of trustees of an independent school district serves without compensation.
TEX. EDUC. CODE ANN. $ 11.061(d) (Vernon 1996). Consequently, a school board trustee does not
hold an “office of emolument,” and article XVI, section 40 is not relevant to your question.

         We must also consider the common-law doctrine of incompatibility, which has three aspects:
self-appointment, self-employment, and conflicting loyalties. See Tex. Att’y Gen. Op. No. GA-0328
(2005) at 1. The first two are not applicable here, because neither the chief of police nor the school
board of trustees appoint or employ the other. It is the third aspect of incompatibility - conflicting
loyalties -that is implicated by your inquiry. This doctrine was first promulgated by a Texas court
in the 1927 case of Thomas v. Abernathy County Line Independent School District, wherein the court
found the offices of school trustee and city alderman to be incompatible:

               In our opinion the offices of school trustee and alderman 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 limits -
               e.g., there might well arise a conflict of discretion or duty in respect
               to health, quarantine, sanitary, and fire prevention regulations . . . .
               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 direction of the council
               or aldermen instead of to that of the trustees.



       3Section 22.07 1 of the Local Government Code addresses “Other Municipal Offtcers” and provides:

                         (a) In addition to the members of the governing body of the municipality,
               the other officers of the municipality are the secretary, treasurer, assessor and
               collector, municipal attorney, marshal, municipal engineer, and any other offtcers
               or agents authorized by the governing body.

                       (b) The governing body by ordinance shall provide for the election or
               appointment of the offtcers provided by this section.

                        (c)The governing body may confer on other municipal officers the powers
               and duties of an officer provided for by this section.

TEX. Lot. GOV’T CODEANN. $22.07    1 (Vernon 1999).
The Honorable Robert Duncan            - Page 3                   (GA-0393)




 Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S. W. 152,153 (Tex: Comm’n App. 1927,
judgm’t adopted).

        The clear message of Thomas is that, in order for conflicting loyalties incompatibility to be
applicable to a particular situation, each position must constitute an “office.” See id Accord Tex.
Att’y Gen Op. Nos. JC-0054 (1999) at 2, JM-1266 (1990) at 4; Tex. Att’y Gen. LO-96-l 48, at 2, LO-
95-029, at 3, LO-93-027, at 2. In Aldine Independent School District v. Standley, the Texas Supreme
Court held that

                  the determining factor which distinguishes a public officer from an
                  employee is whether any sovereign function of the government is
                  conferred upon the individual to be exercised by him for the benefit
                  of the public largely independent ofthe control ofothers.

Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955) (emphasis added). Aldine
held that an assessor-collector of taxes appointed by a school district board of trustees was not a
“public officer,” but rather a mere agent or employee of the board. Id at 582-83. Although the
assessor-collector exercised a “sovereign function of the government,” he did so under the board’s
authority and direction. Id. Likewise, in Dunbar v. Brazoria County, the case relied upon in Aldine,
the court held that a county road engineer was an employee rather than an officer. Dunbar v.
Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston            1949, writ ref d). See also
Harris County v. Schoenbacher, 594 S. W.2d 106, 111 (Tex. Civ. App.-Houston [ 1st Dist.] 1979,
writ ref d n.r.e.) (chief probation officer, while exercising sovereign functions, does so under aegis
and authority ofjuvenile board, and thus does not act “largely independent of the control of’ others);
Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no writ) (public school
teacher is “employee” rather than “officer”).

        Similarly, this office has indicated that an individual is ordinarily not a “public officer” if his
actions are subject to control and his employment may be terminated at will by a superior body,
because in such instances he cannot be said to exercise his authority “largely independent of the
control of others.” Tex. Att’y Gen. Op. No. JM-1266 (1990) at 2. See also Tex. Att’y Gen. Op. Nos.
JC-0054 (I 999) (at-will city attorney is not an “officer”), JM-499 (1986) at 2 (chief appraiser is not
an officer because his responsibilities are subject to review and control by the appraisal review
board, and he serves at board’s pleasure); Tex. Att’y Gen. LO-96-148 (assistant district attorney is
not an “officer”). In another opinion, the attorney general said that “under ordinary circumstances,
a municipal police officer performs his duties under the direction and control of others, and thus,
does not hold an ‘office.“’ Tex. Att’y Gen. LO-93-027, at 2. Accord Tex. Att’y Gen. LO-95-048,
at 2 (municipal police officer does not hold “office of emolument”).4




          4Attomey General Opinion JM-422 assumes, without specifically so finding, that an appointed municipal chief
of police of a general-law city holds an office. See Tex. Att’y Gen. Op. No. JM-422 (I 986) at 2. That conclusion is no
longer valid in light ofAttorney General Opinion DM-2 12, which concluded that a city police offker does not as a matter
of law hold an office. See Tex. Att’y Gen. Op. No. DM-2 12 (1993) at 5.
The Honorable Robert Duncan            - Page 4                   (GA-03 93)




         In the situation you pose, the mayor is the chief executive offker of the city and the
governing body “consists of a mayor and five aldermen.” See TEX. Lot. GOV’T CODE ANN. $9
22.042(a), .03 1(b) (Vernon 1999). As we have noted, the chief of police is not an officer under
section 22.07 1 of the Local Government Code and, moreover, serves at the pleasure of the governing
body. See Request Letter, supra note 1, at 4. Under the standard prescribed by Aldine and its
progeny, as well as numerous attorney general opinions, the chief of police is an employee rather
than an offker. His actions are subject to control and his employment may be terminated at will by
the governing body, i.e., the board of aldermen, In such circumstances, he cannot be said to exercise
his authority “largely independent of the control of others.” Because he is an employee rather than
an officer, he is not prohibited by the conflicting loyalties aspect of the common-law doctrine of
incompatibility from simultaneously serving as a member of the board of trustees of an independent
school district whose geographical jurisdiction overlaps with that of the city he serves as police
officer.’

        Because your second and third questions are premised upon a negative answer to your first
question, we need not address them.




          5We note that the facts presented here are distinguishable from those of Attorney General Opinion GA-0328.
There, we said that a county sheriff may not simultaneously serve as a trustee of an independent school district located
within an unincorporated area of the county in which the sheriff serves as the primary law enforcement official. See Tex.
Att’y Gen. Op. No. GA-0328 (2005). A sheriff is an elected offkial who answers only to the voters. He is thus a “public
officer” for purposes of article XVI, section 40 of the Texas Constitution and the conflicting loyalties aspect of the
common-law doctrine of incompatibility. Id at 1.
The Honorable Robert Duncan        - Page 5             (GA-0393)




                                        SUMMARY

                         The Chief of Police of Hale Center, who   serves at the pleasure
               of the Hale Center Board of Aldermen, is not        prohibited by article
               XVI, section 40 of the Texas Constitution           or the common-law
               doctrine of incompatibility from simultaneously      serving as a member
               of the Board of Trustees of the Hale Center          Independent School
               District.

                                              Very truly yours,




                                                                   eof Texas


BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
