    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN     CORNYN




                                                 April 4,200l



The Honorable Tom Ramsay                                 Opinion No. JC-0363
Chair, County Affairs Committee
Texas House of Representatives                           Re: Whether an individual may simultaneously
P-0. Box 2910                                            hold the offices of mayor and director of a
Austin, Texas 78768-2910                                 hospital district board that has condemned
                                                         property in the mayor’s city (RQ-0307-JC)



Dear Representative     Ramsay:

        You have requested our opinion as to whether an individual may simultaneously hold the
offices of mayor and director of a hospital district that has condemned property in the mayor’s city.
For the reasons stated below, we conclude that he may not do so.

         The mayor of La Vemia, a municipality in Wilson County, was elected to that position in
May, 2000. Prior to that date, he had served as a member of the city council from 1975 through
1982 and again from 1985 until his election as mayor. The same individual was elected to the
Wilson County Memorial Hospital District Board (the “Board”) in 1987 and has served continuously
in that position. He was last elected to president of the Board in 1999 to a term that ends in May,
2001.’

         Both La Vemia and the Wilson County Hospital District have taxing authority and the power
of condemnation.    Rocha Letter, supra note 1, at 2. In April, 2000, the Board of the hospital district
voted to condemn property, for the purpose of building a clinic within a subdivision of La Vemia.
Shortly thereafter, the city council of La Vemia, of which the mayor is a member, enacted a
resolution expressing its opposition to the building of the clinic. The city attorney suggests that,
based on these facts, the mayor is barred by the common-law doctrine of incompatibility            from
simultaneously holding the office of hospital district director. Id.

         Article XVI, section 40 of the Texas Constitution, which prohibits dual office holding except
in certain delineated instances, is applicable only to offices of emolument. Neither the office of
mayor of La Vemia nor the office of director of the Wilson County Memorial Hospital District
Board is a compensated position. Id. Thus, article XVI, section 40 does not bar the simultaneous



          ‘Letter from Ms. Susan C. Rocha, La Vemia City Attorney, to Honorable Ignacio Salinas, Jr., Texas State
Representative at 2 (Sept. 12,200O) (on file with Opinion Committee) [hereinafter Rocha Letter].
The Honorable    Tom Ramsay - Page 2               (JC-0363)




holding of these two positions. The common-law doctrine of incompatibility, however, reaches
some examples of dual office holding not prohibited by article XVI, section 40. Tex. Att’y Gen. Op.
No. JM-203 (1984); Tex. Att’y Gen. LO-96-004. The branch of incompatibility that is applicable
to the situation you pose has been denominated “conflicting loyalties.” See Tex. Att’y Gen. Op. No.
JM-1266 (1990). It was first articulated by a Texas court in Thomas v. Abernathy County Line
Independent School District, wherein the court found the offices of school trustee and city alderman
to be incompatible.   The court found that

                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).

         This office has frequently found conflicting loyalties incompatibility in situations similar to
that of Thomas. See, e.g., Tex. Att’y Gen. Op. Nos. DM-3 11(1994) (offices of county commissioner
and school trustee are incompatible), JM-634 (1987) (office of school trustee incompatible with that
of council member of city located within boundaries of school district); Tex. Att’y Gen. LO-88-049
(one person may not simultaneously hold offices of county commissioner and council member of
city located within that county).

        The situation you describe presents a veritable textbook case of conflicting loyalties
incompatibility.  Not only do both the city and the hospital district have taxing and condemnation
powers in overlapping geographical jurisdictions, but one of them - the hospital district - has
actually condemned property in the other - the city. Furthermore, the governing body of La Vemia
has expressed, on the record, its opposition to the condemnation.    Rocha Letter, supra note 1, at 2.
In such circumstances, it is plain beyond cavil that a single individual may not serve as a member
of both governing bodies without running afoul of incompatibility.     We conclude therefore that the
mayor of La Vernia is barred by the doctrine of common-law incompatibility from simultaneously
serving as president of the Wilson County Memorial Hospital District Board of Directors.

         It is well established that qualification for and acceptance of a second office operates as an
automatic resignation from the first. Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1006
(Tex. 1935); Thomas, 290 S.W. at 153; Tex. Att’y Gen. Op. No. MW-170 (1980). In Pruitt, an
individual was appointed to the position of school district tax collector on October 23,1928, and was
The Honorable   Tom Ramsay - Page 3               (JC-0363)




elected to the position of county tax collector on November 5, 1928. When he began his term as
county tax collector on January 1,1929, his “term of office as district collector ended automatically.”
Pruitt, 84 S.W.2d at 1006. On the basis of this principle, when the individual of whom you inquire
was elected to and assumed the office of mayor of La Vemia in May, 2000, his term as president of
the Board of Directors of the Wilson County Memorial Hospital District was automatically
terminated.
The Honorable   Tom Ramsay - Page 4              (JC-0363)




                                       SUMMARY

                 An individual may not simultaneously hold the offices of mayor and
           director of a hospital district that has condemned property within the mayor’s
           city.




                                              Attorney General of Texas



 ANDY TAYLOR
 First Assistant Attorney General

 CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

 Rick Gilpin
 Assistant Attorney General - Opinion Committee
