     OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

     JOHN     CORNYN




                                                 February 12,200l



The Honorable Rodney Ellis                                      Opinion No. JC-0339
Chair, Finance Committee
Texas State Senate                                             Re: Whether      an individual may simultaneous-
P.O. Box 12068                                                 ly serve as      director of a municipal utility
Austin, Texas 787 1 l-2068                                     district and      member of the city zoning
                                                               commission        (RQ-028 1-JC)


Dear Senator Ellis:

         You ask whether an individual who serves as director of Harris County Municipal Utility
District No. 122 (the “MUD”) may also serve as a member of the Planning and Zoning Commission
for the City of Missouri City (the “Planning and Zoning Commission”).      We conclude that one
person is barred from holding both offices by the common-law doctrine of incompatibility as well
as by a city ordinance.

         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,” subject to exceptions that are
not relevant to your question. TEX. CONST. art. XVI, 6 40. We are informed, however, that members
of the Planning and Zoning Commission serve without compensation.’ If a member of the Planning
and Zoning Commission does not receive compensation, he or she is not a civil officer of
emolument, and article XVI, section 40 of the Texas Constitution would not bar one person from
serving on that body and holding another office.

         The common-law doctrine of incompatibility may, however, prevent this dual service,
whether or not a member of the Planning and Zoning Commission receives compensation for that
position. See Tex. Att’y Gen. LOS 93-070, at 3-4; 88-049, at 2 (compensation is not relevant to
determining whether offices are incompatible). The common-law doctrine of incompatibility bars
one person from holding two offices if their duties conflict. Thomas v. Abernathy County Line
Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm’n App. 1927, judgm’t adopted). The opinion in
Thomas v. Abernathy County Line held that the offices of school trustee and city alderman were
incompatible.   Id. at 153. The boundaries of the two jurisdictions overlapped, and the board of
aldermen had authority over health, quarantine, sanitary, and tire prevention regulations applicable



          ‘Letter fromMr. James H. Ragan, Jr., to Senator Rodney Ellis (Sept. 5,200O) (attachment to request letter from
the Honorable Rodney Ellis, Texas State Senate, to the Honorable John Comyn, Texas Attorney General (Sept. 7,200O)
(on file with Opinion Committee).
    The Honorable Rodney Ellis - Page 2                (JC-0339)




    to school property. Id. If the same person were both a school trustee and a member of the board of
    aldermen at the same time, one office might impose its policies on the other. See generally Tex.
    Att’y Gen. Op. No. JC-0270 (2000) at 2. Accordingly, we consider whether directors of municipal
    utility districts and members of the Planning and Zoning Commission are officers.

             Municipal utility districts (“MUDS”) are created under the authority of article XVI, section
    59 of the Texas Constitution. TEX. WATERCODEANN. 9 54.011 (Vernon 1972). They are subject
    to chapters 49 and 54 of the Water Code, which apply respectively to general law water districts and
    to municipal utility districts. See id. $9 49.001 (a), 54.001 (Vernon 1972 & Supp. 2001). Municipal
    utility districts are created for the water control, storage, and distribution purposes stated in section
    54.012 of the Water Code. Id. $54.012 (Vernon 1972). They are governed by a board of directors,
    who are elected to four-year terms. Id. 80 49.05 1, .103 (Vernon 2000).

             The Board is responsible for “the management of all the affairs of the district.” Id. 9 49.057.
    It may levy and collect a tax for operation and maintenance purposes, id. 8 49.107, issue bonds,
    notes, or other obligations to borrow money for its purposes, id. 5 49.152, and exercise various other
    powers set out in Water Code chapter 49. See, e.g., id. $5 49.153, .154 (issuance of revenue notes
    and bond anticipation notes); 49.212 (adoption of charges, fees, or rentals for provision of district
    services). The Texas Supreme Court has stated the following test for determining whether an
    individual holds a public office: “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 of the control of others.”
    Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955); see also Tex. Att’y Gen. Op.
    No. JC-0184 (2000) at 2 (director of a municipal utility district is a public official for purposes of
    Government Code, chapter 573, relating to nepotism).        A director of a MUD is a public officer
    within the test stated by the Texas Supreme Court in Aldine.

.
             We next consider whether members of the Missouri City Planning and Zoning Comrnission
    are officers. Zoning authority is delegated to municipalities by Local Government Code, chapter
    2 11. To exercise the power authorized by this subchapter, the governing body of a home-rule city
    shall appoint a zoning commission. TEX. LOC. GOV’T CODEANN. 9 2 11.007 (Vernon 1999); see id.
    (if municipality has a municipal planning commission, it may appoint that commission to serve as
    the zoning commission). The legislature has authorized a city to delegate some part of its sovereign
    power to the zoning commission it creates. See id. 6j8 2 11.006(f) (cl‘ty council may provide that vote
    of three-fourths of its members is required to overrule zoning commissioners’ recommendation         to
    deny proposed change to regulation or boundary); 2 11.007(b) (governing body of a home-rule city
    may not take action on a matter until it receives the final report of the zoning commission); see
    generally Tex. Att’y Gen. Op. No. JM-704 (1987) at 2 (concluding that members of the L&in City
    Zoning and Planning Commission are civil officers of emolument); see also Tex. Att’y Gen. Op. No.
    DM-309 (1994) at 2 (member of Dallas Planning and Zoning Commission is a “local public official”
    within Local Government Code chapter 17 1). If the Missouri City Planning and Zoning
    Commission exercises governmental powers delegated by the city council, its members will be
    public officers.
The Honorable Rodney Ellis - Page 3                   (JC-0339)




         The Planning and Zoning Commission of Missouri City consists of nine citizens of Missouri
City who are appointed by the city council for a term of two years. See MISSOURI CITY, TEX.,
CHARTER ART. VIII, 6 8.01 (1986); see also MISSOURI CITY, TEX., CODE 5 2-132. The commission
is responsible for final approval of plats under chapter 212, subchapter A of the Local Government
Code. See TEX. Lot. GOV’T CODE ANN. 8 212.006 (Vernon 1999); MISSOURICITY, TEX., CODE
4 82-5(a) (198 1) (Planning and Zoning Commission authorized to approve final plat, plan or plat of
a subdivision).    In addition, the commission may grant a developer a variance from a rule or
regulation on subdivisions under the circumstances set out in the city code. MISSOURICITY, TEX.,
CODE 9 82-7 (198 1). In our opinion, members of the Missouri City Planning and Zoning
Commission exercise a sovereign function of the government “for the benefit of the public largely
independent of the control of others” within the Aldine test and are therefore public officers.

          Our next consideration is whether members of the Missouri City Planning and Zoning
Commission have powers and duties that are incompatible with the powers and duties of a director
of Harris County Municipal Utility District No. 122. The city attorney states that during the plat
approval process, the Planning and Zoning Commission requires submittal of preliminary utility
plans to assist in determining the feasibility of a proposed development.* The nature and location
of water and sewer services must be identified, and the plat must show utility easements and
facilities such as utility plants. The city attorney suggests that a member of the Planning and Zoning
Commission      who is a director of a MUD may have divided loyalties when the proposed
development is located within the MUD on whose board he serves. In this situation, the Planning
and Zoning Commission is able to control and impose its policies on the MUD, by determining the
manner and placement of the MUD’s facilities.

         On the basis of Thomas v. Abernathy County Line Independent School District, 290 SW. 152
(Tex. Comm’n App. 1927, judgm’t adopted), we agree with the city attorney that the two offices are
incompatible, and that a member of the Planning and Zoning Commission who also serves on Harris
County Municipal Utility District No. 122 would have divided loyalties in facing decisions that
affected his MUD. We conclude that the common-law doctrine of incompatibility              prevents a
member of the Missouri City Planning and Zoning Commission from at the same time serving as
director of a municipal utility district with territory within the boundaries of Missouri City.

         Finally, the city council of Missouri City has adopted the following ordinance establishing
the qualifications of members of the Planning and Zoning Commission: “A member of the Planning
and Zoning Commission may not hold another public office while serving as a Planning and Zoning
Commission member.” MISSOURICITY, TEX., CODE 5 2- 136 (2000).

        A home-rule city may adopt any ordinance that is not inconsistent with the constitution,
general laws, or its city charter. TEX. CONST.ANN. art. XI, 9 5 (Vernon 1993). We are not aware
of any provision of the constitution, laws, or the Missouri City charter which is contrary to the city


         2Letter from Mary Ann Pruett, City Attorney of Missouri   City, to Ms. Susan D. Gusky,   Chair, Opinion
Committee (Oct. 11,200O) (on file with Opinion Committee).
The Honorable       Rodney Ellis - Page 4                   (JC-0339)




ordinance, and none has been pointed out to us. See generally TEX. LOC. GOV’YIYODE ANN.
$9 26.041 (Vernon 1999) (home-rule city may create offices and prescribe qualifications for
officers); 211.007(a) (governing body of a home-rule city shall create a zoning commission). This
city ordinance prohibits a member of the Missouri Planning and Zoning Commission from at the
same time holding office as director of a municipal utility district.3




            3The city attorney also informs us that Missouri City has 17 in-city MUDS that provide water and sewer services
to its citizens. The city has begun a regionalization     program for wastewater treatment services that involves building
regional wastewater treatment plants and contracting with MUDS to treat their wastewater at a regional plant. The city
has contracted with two in-city MUDS and is negotiating with two others to provide this service, but the city attorney
does not indicate that the city has contracted or plans to contract with Harris County Municipal Utility District No. 122.
In view of our conclusion based on other facts, we need not consider whether these facts alone would make service as
director of Harris County Municipal Utility District No. 122 incompatible with service on the Planning and Zoning
Commission.
The Honorable   Rodney Ellis - Page 5               (JC-0339)




                                         SUMMARY

                         A director of a Municipal Utility District holds a public office,
                as does a member of the Planning and Zoning Commission of the
                City of Missouri City. Because the duties of the two offices are in
                conflict where they have overlapping jurisdiction, the common-law
                doctrine of incompatibility bars one person fkom holding both offices.
                A Missouri City ordinance also prohibits a member of the Planning
                and Zoning Commission from holding another public office while
                serving as a Planning and Zoning Commission member.




                                                 Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
