                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                 December      8,2003



The Honorable Michael J. Knight                             Opinion No. GA-01 27
Bee County Attorney
Bee County Courthouse, Room 204                             Re: Whether a school trustee may serve as an
105 West Corpus Christi Street                              umpire at school district baseball games
Beeville, Texas 78 102                                      (RQ-0086-GA)

Dear Mr. Knight:

      You ask whether a school trustee may serve as an umpire at school district baseball games.’
You explain the fact situation as follows:

                  [T]he Beeville ISD obtains official (umpires) for its baseball games
                  from the Corpus Christi Umpires Association (the “Chapter”) of
                  which the trustee is a member . . . . For the games, the Chapter itself
                  assigns one of its members to officiate each game . . . . The district
                  directly compensates these umpires serving at the district games
                  . . . . [The Umpires Association] is a division of the Texas
                  Association of Sports Officials.2 The Umpires Association has a
                  board and does training, supervision and assignment of the umpires.

Request Letter, supra note 1, at l-2.

         Article XVI, section 40 of the Texas Constitution bars an individual from simultaneously
holding more than one “office of emolument.”         TEX. CONST. art. XVI, 5 40. A trustee of an
independent school district clearly holds an “office,” see Thomas v. Abernathy County Line Indep.
Sch. Dist., 290 S.W. 152,153 (Tex. Comm’n App. 1927, judgm’t adopted), but because trustees by
statute serve without compensation, a trustee does not hold an office of emolument. See TEX. EDUC.
CODE ANN. 5 11.061(d) (Vernon 1996) (school trustees serve without compensation).           Thus, a
school trustee may serve as an umpire at school district baseball games without running afoul of
article XVI, section 40.


         ‘Letter from Honorable Michael J. Knight, Bee County Attorney, to Honorable Greg Abbott, Texas Attorney
General, at 1 (July 23,2003) (on file with Opinion Committee) [hereinafter Request Letter].

          2Schools participating in the University Interscholastic League (“UIL”) are required to use officials registered
with the Texas Association of Sports Officials or the UIL in varsity contests, unless they mutually decide otherwise. See
UNIVERSITY INTERSCHOLASTICLEAGUE, 2003-04CONSTITUTION AND CONTEST RULES, 5 1204(b), available at
http://www.uil.utexas.edu/athkules/l204.html      (last visited Oct. 17,2003) [hereinafter UIL, C&CR].
The Honorable Michael J. Knight             - Page 2            (GA-0127)




         We must also consider the common-law doctrine of incompatibility, which is independent
of article XVI, section 40. See Tex. Att’y Gen. Op. No. GA-0015 (2003) at 1. Three aspects of
common-law incompatibility have been recognized by the courts and the attorney general: (1) self-
appointment; (2) self-employment; and (3) conflicting loyalties. See id. The self-appointment aspect
of incompatibility was described by the Texas Supreme Court in Ehlinger v. Clark:

                   It is 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 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). Self-appointment           incompatibility   is not
applicable to the situation you pose because the board of trustees does not appoint the umpires.
Rather, the umpires are appointed by the Corpus Christi Umpires Association, a private organization.
See Request Letter, supra note 1, at 2.

         Self-employment incompatibility is a doctrine derived from the self-appointment      aspect of
incompatibility.   In 1975, the attorney general concluded, on the basis of Ehlinger v. Clark and out-
of-state authority, that the “positions of public school teacher for an independent school district and
trustee for the same district are legally incompatible and cannot be simultaneously occupied by the
same person.” Tex. Att’y Gen. LA-l 14 (1975) at 8; see also Tex. Att’y Gen. Op. No. JC-0371
(2001); Tex. Att’y Gen. LO-97-034. An umpire in the fact situation you describe is not, however,
an employee of the school district. Rather, he or she stands in the guise of an independent
contractor.3 As already noted, the Corpus Christi Umpires Association, a private organization,
assigns an umpire to officiate each game. Moreover, the situation is unlike that of Attorney General
Opinion JC-037 1, in which this office said that a school trustee was not permitted “to serve as a
volunteer, unpaid, part-time history teacher [in his district] for one period a day . . . for a single
semester.” Tex. Att’y Gen. Op. No. JC-0371 (2001) at 1. That opinion noted that supervision is the
key to self-employment incompatibility.      Id. at 3. Under the circumstances you describe, however,
the district has no supervisory authority over the umpires that referee district games. Rather, the
umpires are supervised by the Corpus Christi Umpires Association4              Thus, self-employment
incompatibility does not prohibit a school trustee from serving as an umpire at district games under
the facts presented here.




          3Prior opinions of this office have held that an independent contractor does not hold a “position of profit” under
article XVI, section 40, and that consequently, a legislator is not barred from simultaneously serving as an independent
contractor for a governmental body. See Tex. Att’y Gen. Op. No. H-l 304 (1978); Tex. Att’y Gen. LO-95-022, LO-93-
031.

          @Ihere is a procedure for replacing an official who is not satisfactory to the coach. See Request Letter, supra
note 1, at 1; see also UIL, C&CR, $ 1204(a), supra note 2 (officials must be satisfactory to both parties and agreed upon
in advance).
The Honorable Michael J. Knight             - Page 3            (GA-0127)




        The third aspect of incompatibility - conflicting loyalties - is derived from 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.

Thomas ,290 S.W. at 153. Under the conflicting loyalties doctrine, both positions must be offices
in order for a conflict to occur. See Tex. Att’y Gen. Op. Nos. JC-0054 (1999), JM-1266 (1990).
Although the position of school trustee is clearly an office, see Tex. Att’y Gen. Op. No. GA-0032
(2003) (elected official holds an office), that of umpire is not. The test for determining whether a
person holds a public office was articulated by the Texas Supreme Court in Aldine Independent
School District v. Standley:

                  [T]he 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 of the control of others.

Aldine Indep. Sch.      Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). It is manifest that no
sovereign function      of government is conferred upon an umpire assigned by a private organization
to officiate a public    school baseball game. As a result, the conflicting loyalties aspect of common-
law incompatibility,      under the facts you present, does not prohibit a school trustee from serving as
an umpire at school      district baseball games?




         ‘We note that two other statutes could conceivably   be relevant to your inquiry.   Section 11.063 of the Education
Code provides that “[a] trustee of an independent school district may not accept employment with that school district
until the first anniversary of the date the trustee’s membership on the board ends.” TEX. EDUC. CODEANN. $ 11.063
(Vernon 1996). As we have already observed, however, the trustee in question does not act as a district employee when
he serves as an umpire. Rather, he acts in the capacity of independent contractor. As a result, section 11.063 does not
prohibit the kind of arrangement posed by your question. Furthermore, in the unlikely event that the trustee’s position
as umpire would rise to the level of a sole proprietorship in which he had a substantial interest, he would be obliged to
comply with the provisions of chapter 17 1 of the Local Government Code.
The Honorable Michael J. Knight    - Page 4       (GA-0127)




                                      SUMMARY

                       A member of the board of trustees of the Beeville Independent
               School District is not prohibited by article XVI, section 40 of
               the Texas Constitution,        or by the common-law       doctrine of
               incompatibility from serving as an umpire at baseball games in which
               his school district is involved.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
