 ..   OFFICE     OF   THE    ATTORNEY   GENERAL   . STATE    OF   TEXAS

      JOHN        CORNYN




                                                            September 20,2002



The Honorable Warren Chisum                                               Opinion No. JC-0557
Chair, House Cornmittee on
  Environmental Regulation                                                Re: Whether a member of a school district board
Texas House of Representatives                                            of trustees may serve as a member of the board of
P.O. Box 2910                                                             directors of a groundwater conservation district
Austin, Texas 78768-29 10                                                 with a population of less than 50,000
                                                                          (RQ-053 1-JC)


Dear Representative               Chisum:

          You have requested our opinion as to whether a member of a school district board of trustees
is eligible to serve as a member of the board of directors of a groundwater conservation district with
a population of less than 50,000. For the reasons set forth below, we conclude that the trustee is not
eligible to do so.

               Section 36.05 1(b) of the Water Code provides:

                            (b) A member of a governing body of another political subdivision
                            is ineligible for appointment or election as a director. A director is
                            disqualified and vacates the office of director if the director is
                            appointed or elected as a member of the governing body of another
                            political subdivision. This subsection does not apply to any district
                            with a population of less than SO,000.

TEX. WATER      CODE ANN. 9 36.051(b) (Vernon 2000) (emphasis added). Before turning to your
specific question, we will discuss the background of section 36.05 1(b), in order to address arguments
presented in two briefs submitted to this office in connection with the present inquiry.’

        Section 36.05 l(b) was adopted in 1995 as a consolidation of that portion of the Water Code
dealing with groundwater conservation districts. See Act of May 29,1995,74th Leg., R.S., ch. 933,
5 2, 1995 Tex. Gen. Laws 4673, 4683. The historical and statutory notes to section 36.051 list




         ‘Brief fromBrian L. Sledge, Attorney at Law, Lloyd, Gosselink, Blevins, Rochelle, Baldwin & Townsend, P.C.,
to Susan Denmon Gusky, Chair, Opinion Committee, Office of the Texas Attorney General (May 8,2002) (on file with
Opinion Committee); Brief from Gregory M. Ellis, Attorney at Law, to Susan Denrnon Gusky, Chair, Opinion
Committee, Office of the Texas Attorney General (May 24,2002) (on tile with Opinion Committee).
The Honorable      Warren Chisum         - Page 2            (JC-0557)




former section 52.106 of an earlier Water Code as a prior law. Section 52.106 was added to the
previous Water Code in 1989, when the provision read in its entirety:

                   Sec. 52.106.     Qualifications    for Directors

                  To be qualified to serve as a director, a person must be a registered
                  voter in the precinct that the person represents2

Act of May 29, 1989, 71st Leg., ch. 936, 0 5, 1989 Tex. Gen. Laws 3981, 3994. In 1991, the
legislature renumbered section 52.106 as subsection (a) of section 52.106, and added a subsection
(b), which read as follows:

                  (b) A member of the governing body of another political subdivision
                  is ineligible for appointment or election as a director. A director is
                  disqualified and vacates the office of director if the director is
                  appointed or elected as a member of the governing body of another
                  political subdivision.

Act of May 27,1991,72d       Leg., R.S., ch. 701,§ 5,199l Tex. Gen. Laws 2506,2507.    In the 1995
consolidation, the legislature renumbered subsection 52.106(b) as subsection 36.05 1(b), and added
the exemption for districts with a population of less than 50,000. Act of May 29, 1995,74th Leg.,
R.S., ch. 933, 5 2, 1995 Tex. Gen. Laws 4673,4683.

         In Attorney General Opinion JC-0455, we said that section 36.05 1(b) of the Water Code may
not be read to “affirmatively declare that, in a district with a population of less than 50,000, a
member of the governing body of another political subdivision is thereby eligible to serve as a
director of a groundwater conservation district. Subsection 36.051(b) thus does not repeal the
common-law doctrine of incompatibility with regard to districts of less than 50,000 population.”
Tex. Att’y Gen. Op. No. JC-0455 (2002) at 4. Because the groundwater conservation district at issue
in JC-0455 was authorized to contract with a county, to levy taxes, and most especially, to exercise
substantial control over water whose regulation was also entrusted to the county, the opinion
concluded that “a county commissioner is prohibited by the common-law doctrine of incompatibility
from simultaneously serving on the board of directors of any groundwater conservation district with
geographical boundaries that overlap those of the county.” Id. at 6.

         We have frequently noted that the common-law doctrine of incompatibility has three aspects:
self-appointment,   self-employment,   and conflicting loyalties. The first is derived from the Texas
Supreme Court’s decision in Ehlinger v. Clark, in which the Court held that “because of the obvious
incompatibility of being both a member of a body making the appointment and an appointee of that
body that the courts have with great unanimity throughout the country declared that all officers who



          *Groundwater conservation districts were at that time referred to as “underground water conservation districts”
in chapter 52 of the Water Code. Act of May 29, 1989, 71st Leg., R.S., ch. 936, § 1, 1989 Tex. Gen. Laws 398 1.
The Honorable Warren Chisum         - Page 3          (JC-0557)




have the appointing power are disqualified for appointment to the offices to which they may
appoint.” Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). The “self-employment”            aspect of
incompatibility is a kind of corollary to the “self-appointment” doctrine. It was first recognized in
Texas in Attorney General Opinion LA-l 14 (1975), in which this office said that a public school
teacher was ineligible to serve as a member of the board of trustees of the district in which she was
employed as a teacher. The third aspect of incompatibility - conflicting loyalties - was first
announced by a Texas court in the case of Thomas v. Abernathy County Line Independent School
District. In that case, the court held:

                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.

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

         Since its genesis in 1989, it is clear that the present version of section 36.05 1(b) was intended
by the legislature to impose a statutory disqualification on the holding of certain offices, a
disqualification that was different from common-law incompatibility.             The statute is broader than
self-appointment incompatibility, in that it applies to the appointment and the election as a director
of a groundwater conversation district, by any method whatsoever. It is not limited to appointments
made by oneself or one’s board. Thus, because school trustees do not appoint members of a
groundwater conservation board in a county that also contains a groundwater conservation district,
a school trustee would not be barred by self-appointment incompatibility from serving as a director
of a groundwater conservation district. But the same individual would, in a district with a population
of 50,000 or more, be prohibited from such dual service by section 36.05 1(b).

         On the other hand, the statute is narrower than the self-employment aspect of incompatibility.
That doctrine would prohibit the board of directors of a groundwater conservation district of 50,000
or greater population from employing one of its own members as executive director of the district.
Section 36.05 l(b) would not do so, however, because the executive director of a groundwater
conservation district is not “a member of the governing board of another political subdivision.” TEX.
WATER CODE ANN. 8 36.05 l(b) (Vernon 2000).

        Accordingly, section 36.05 l(b), both in its scope and in the history of its legislative
permutations since 1989, is altogether different from the common-law doctrine of incompatibility.
The Honorable        Warren Chisum      - Page 4          (JC-0557)




The mere fact that some of its prohibitions overlap does not demonstrate that the legislature meant
to abrogate the common-law doctrine with regard to groundwater conservation districts. As the court
said in Bruce v. Jim Walters Homes, Inc., “[a] statute may be interpreted as abrogating a principle
of common law only when either the express terms of the statute or its necessary implications clearly
indicate such an intent by the legislature.” Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 12 1,122-
23 (Tex. App.-San Antonio 1997, writ denied); accord Enos v. State, 889 S.W.2d 303,305 (Tex.
Crim. App. 1994) (this canon “is based on the reasonable supposition that if the Legislature intended
to overrule a principle of the common law, then it would have made its intent clear”). Nor does any
legislative history that we have found indicate that the legislature had in mind common-law
incompatibility   when it enacted section 36.05 l(b), or any of its predecessors.       Consequently,
common-law incompatibility, to the extent it can be applied, remains in effect for groundwater
conservation districts.

         It follows that, when the legislature in 1995 enacted the exemption for districts with a
population of less than 50,000, it meant to apply the exemption only to the statutory prohibition of
section 36.05 1(b). Because that statute did not speak to common-law incompatibility, an exemption
from that statute could have had no bearing on the doctrine of common-law incompatibility with
regard to districts with a population of less than 50,000. Thus, all three components of common-law
incompatibility remain in effect for all districts, regardless of population.

            With this background,    we turn to your question.    You ask us to assume the following facts:

                    1. a portion of the school district’s boundaries     overlap a portion of
                    the groundwater district’s boundaries;

                    2. both the school district and the groundwater         district are taxing
                    entities;

                    3. service on the school board is an uncompensated         position;

                    4. the school district does not presently engage in any activity
                    regulated by the groundwater district, nor does it intend to engage in
                    any such activity in the future; and

                    5. the school district does not own property within the groundwater
                    district’s boundaries.3

It is clear that the school district and the groundwater conservation district, in the situation you pose,
do not have the sort of intertwined relationship that was the case in Attorney General Opinion
JC-0455. You do not indicate whether the districts are authorized to contract with each other, but,
as you have not informed us specifically of such authority, we will assume for purposes of this


            3Letter from Honorable Warren Chisum, Chairman, House Committee on Environmental       Regulation,   to
Honorable     John Comyn, Texas Attorney General (Apr. 1,2002) (on file with Opinion Committee).
The Honorable    Warren Chisum     - Page 5          (JC-0557)




opinion that they do not have it. Nevertheless, as this office has declared on many occasions,
“[wlhere the geographical boundaries of two governmental bodies overlap, there is always the
potential for conflict.” Tex. Att’y Gen. Op. No. JC-0455 (2002) at 5; see also Tex. Att’y Gen.
Op. Nos. JM-1266 (1990) at 4, JM-129 (1984) at 3.

          In our view, the most troubling aspect of the circumstances described here is that both
districts have the power of taxation. In Attorney General Opinion JM-129, this office considered
whether a member of the board of trustees of a community college district was barred by common-
 law incompatibility from simultaneously serving as a county commissioner in the county in which
the community college district was located. The Attorney General found that “[tlhe county and the
junior college district could have conflicting interests with respect to tax collection and one person
 serving as junior college trustee and county commissioner could not serve the best interests of both.”
 Tex. Att’y Gen. Op. No. JM-129 (1984) at 2. Likewise, in Attorney General Opinion JM-1266, this
 office considered whether a person could simultaneously hold the offices of city council member and
 director of a navigation district that had overlapping geographical boundaries with the city. The
 opinion declared that “[i]f the navigation district has and exercises taxing authority, the potential for
 conflict is probably insurmountable.”     Tex. Att’y Gen. Op. No. JM-1266 (1990) at 4.

         If two districts with overlapping geographical jurisdictions each have the power of taxation,
we also believe that the potential for conflict is insurmountable.    Where the object of each district
is to maximize its own revenues, a single individual would have great difficulty in exercising his
duties to two separate and competing masters. For that reason, it is our opinion that, where both
districts have taxing authority, and their geographical boundaries overlap, a member of a school
district board of trustees may not simultaneously serve as a member of the board of directors of a
groundwater conservation district with a population of less than 50,000.
The Honorable   Warren Chisum      - Page 6          (JC-0557)




                                         SUMMARY

                         A member of a school district board of trustees is not rendered
                ineligible by virtue of section 36.051(b) of the Water Code to serve
                as a member of the board of directors of a groundwater conservation
                district with a population of less than 50,000. Nonetheless, where the
                geographical boundaries of the school district and the groundwater
                conservation district overlap, and where both have taxing authority,
                a member of the school district board of trustees is barred by the
                “conflicting    loyalties” aspect of the common-law          doctrine of
                incompatibility    from simultaneously    serving as a member of the
                board of directors of the groundwater conservation district.

                                                 Y       rsvery trul ,



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                                                 JokN     CORNYN
                                                                   T


                                                 Attorney General of Texas


HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
