                                            The Attorney       General of Texas
  JIM MATTOX                                             December 5, 1983
  Attorney General


  Supreme      Court Building             Mr. Larry Temple                       Opinion No. m-97
  P. 0. Box 12546                         Chairman
  Austin,    TX. 76711. 2546              Coordinating Board                     Re:    Whether an individual
  512/475-2601
  Telex    9101674-1367
                                          Texas College and University System    may 8srve simultaneously as a
  Telecopier     5121475.0266             P. 0. Box 12788, Capitol Station       member of the Coordinating
                                          Austin, Texas   78711                  Board and a Junior College
                                                                                 Board
  714 Jackson,  Suite 700
  Dallas, TX. 75202.4506
  2141742.6944
                                          Dear Mr. Temple:

                                               You have asked us to determine who is the proper holder of one of
  4624 Alberta       Ave., Suite    160   the positions on the Coordinating Board of the Texas College and
  El Paso, TX.       79905.2793           University System -- Dr. Gwendolyn Morrison or Mr. George Bramblett.
  9151533.3484
                                          You inform us that Governor Clements appointed Dr. Morrison to the
                                          Coordinating Board of the Texas College and University System in
pO1         Texas. Suite 700              October, 1979 for a term to expire in August, 1985. At the time of
      .ouston,    TX. 77002-3111          her appointment to the Coordinating Board of the Texas College and
  7131223-5666                            University System Dr. Morrison was serving a six-year term on the
                                          Tarrant County Junior College Roard to which she was elected in April,
                                          1976. Against the advice of Governor Clements' legal staff, Dr.
  606 Broadway,        Suite 312
  Lubbock.   TX.      79401.3479          Morrison continued to serve on the Tarrant County Junior College Board
  6W747.5236                              after her appointment to the Coordinating Board of the Texas College
                                          and University System. In April 1982, Dr. Morrison was x-elected to
                                          her position on the Tarrant County Junior College Board. Contending
  4309 N. Tenth, Suite B
  McAllen,     TX. 76501.1665
                                          that Dr. Morrison could not serve concurrent terms on the two boards,
  5121662-4547                            Governor Mark White appointed Mr. George Bramblett to the Coordinating
                                          Board of the Texas College and University System to replace Dr.
                                          Morrison on October 6, 1983.
  200 Main Plaza, Suite 400
  San Antonio.  TX. 76205.2797
  512/225-4191
                                               Dr. Morrison insists that she can continue to serve on both
                                          boards and that Governor White's appointment of Mr. Bramblett was
                                          invalid. We disagree with Dr. Morrison. We conclude that Dr.
  An Equal       Opportunity/             Morrison relinquished her position on the Coordinating Board of the
  Affirmative      Action     Employer    Texas College and University System when she began her second term on
                                          the Tarrant County Junior College Board and that Mr. Bramblett is the
                                          proper holder of the position vacated by Dr. Morrison.

                                               Texas law provides that one person may not hold two civil offices
                                          which are incompatible. Attorney General Opinion O-3308 (1941). This
                                          office has determined incompatibility on a case-by-case basis. See
                                          Attorney General Opinions M-842 (1971) (offices of domestic relations




                                                                  p. 411
Mr. Larry Temple - Page 2   (JM-97)




judge and member of board of directors of Texas Southern University
are compatible); V-63 (1947) (offices of county commissioner and
trustee of independent school district are compatible); O-5145 (1943)
(offices of county commissioner and trustee of a rural high school
district are incompatible).

     Attorney General Opinion V-63 set forth the following test for
determining whether two offices should be considered incompatible:

          One of the most important tests as to whether
          offices are incompatible is found in the principle
          that the incompatibility is recognized whenever
          one is subordinate to the other in some of its
          important and principal duties, or is subject to
          supervision by the other, or where a contrariety
          and antagonism would result in the attempt by one
          person to discharge the duties of both. Under
          this principle two offices are incompatable where
          the incumbent of one has the power . . . of
          appointment as to the other office, or to audit
          the aCCO""ts of another, or to exercise a
          supervision over another.

Attorney General Opinion V-63 (citing Knuckles v. Board of Education
of Bell County, 114 S.W.2d 511 (KY. 1938).

     We conclude that positions on the Coordinating Board of the Texas
College and University System and the Tarrant County Junior College
Board are incompatible. Section 61.051 of the Education Code defines
the role of the Coordinating Board of the Texas College and University
System:

             (a) The board shall represent the highest
          authority in the state in matters of public higher
          education.

             (b) The board shall define a junior college, a
          senior college, a university, and a university
          system; provided, that nothing in this section may
          be construed to authorize the board to establish
          or create any university system or to alter any
          university system presently existing by virtue of
          statute or the constitution of this state.

             (c) The board shall develop and publish
          criteria to be used as a basis for determining the
          need for changing the classification of any public
          institution   of   higher    education   and   for
          determining the need for new public junior




                                p. 412
Mr.   Larry Temple - Page 3   (JM-97)




           colleges, public senior colleges, universities, or
           university systems.

              (d) The board shall classify and prescribe the
           role and scope for each public institution of
           higher education in Texas, shall make such changes
           in classification or role and scope of each
           instituti~onas it deems necessary, and shall hear
           applications from the institutions for changes in
           classification or role and scope. The board shall
           make recommendation to the legislature with
           respect to maximum enrollment limits for each
           public institution of higher education in the
           State of Texas and m=Y         recommend to the
           legislature maximum enrollment limits for any
           department, school, degree program, or certificate
           program at any such institution.

              (e) The board shall review periodically all
           degree and certificate programs offered by the
           institutions of higher education to assure that
           they meet the present and future needs of the
           state. The board shall also order the initiation,
           consolidation, or elimination of degree or
           certificate programs where that action is in the
           best interest of the institutions themselves or
           the general requirements of the State of Texas, or
           when that action offers hope of achieving
           excellence by    a   concentration of available
           resources. No new department, school, degree
           program, or certificate program may be added at
           any institution of higher education except with
           specific prior approval of the board.         Once
           approved, no department, school, degree program,
           or certificate program at any institution of
           higher education may be expanded to include
           subject matter courses that are outside of
           approved degree and certificate programs except
           with specific prior approval of the board.
           (Emphasis added).

     In our opinion, the Tarrant County Junior College Board is
subordinate to the Coordinating Board of the Texas College and
University System "in some of its important and principal duties."
The Coordinating Board of the Texas College and University System
"defines a junior college," and subsections (c), (d), and (e) of
section 61.051 clearly empower the Coordinating Board of the Texas
College and University System to directly supervise critical aspects
of the administration of a junior college such as Tarrant County




                                p. 413
Mr. Larry Temple - Page 4 (JM-97)




Junior College. In our opinion, it would be improper for Dr. Morrison
to serve concurrent terms on the Coordinating Board of the Texas
College and University System and the Tarrant County Junior College
Board.

     The incompatibility of these two offices invites application of
the common law doctrine of vacation:

          Persons who accept and qualify for offices that
          are incompatible with offices they already hold
          ipso facto relinquish their prior posts.

Attorney General Opinion MW-170 (1980). --See Purcell vet.Carrillo, 349
S.W.Zd 263 (Tex. Civ. App. - San Antonio 1961, no writ); Ramirez v.
Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ r, ef'd
n.r.e.); Attorney General Opinions bib'-170(1980); H-155, H-117 (1973);


     Accordingly, we have determined that Dr. Morrison's career in
public office has progressed as follows: in October 1976 Dr. Morrison
began a term on the Tarrant County Junior College Board; she
relinquished this position when she accepted Governor Clements'
appointment to the Coordinating Board of the Texas College and
University System; she then relinquished her post on the Coordinating
Board of the Texas College and University System when she accepted her
second term on the Tarrant County Junior College Board. This left her
position on the Coordinating Board of the Texas College and University
System vacant.

     We conclude that Mr. George Bramblett is the proper holder of the
position on the Coordinating Board of the Texas College and University
System.

                             SUMMARY

             An individual may not serve simultaneously as a
          member of the Coordinating Board of the Texas
          College and University System and a Junior College
          Board. Upon acceptance of a position on one of
          the boards, membership on the other board is
          relinquished.




                                    -   JIM     MATTOX
                                        Attorney General of Texas




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            Mr. Larry Temple - Page 5    (JM-97)




            TOM GREEN
            First Assistant Attorney General

            DAVID R. RICHARDS
            Executive Assistant Attorney General

            Prepared by Rick Gilpin
            Assistant Attorney General

            APPROVED:
            OPINION COMMITTEE

            Rick Gilpin, Chairman
            Colin Carl
            Susan Garrison
            Jim Moellinger
            Nancy Sutton




P




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