                           QBffice
                                 of the IBttornep&neral
                                        Bbtateof lltexarr
DAN MORALES
 ATTORNEY
      CENERAL                            Deamber     12.1994

     Mr. Lionel R Meno                               Opinion No. DM-3 11
     commissioner of Education
     Texas Education Agency                          Re: whether      the offices of county
     1701 North Congress Avenue                      commissiona and public school district
     Austin, Texas 78701-1494                        trustee are incompatible (RQ-690)



             You ask whetherthe offices    of county commissioner and public school district
     trustee are incompatible. The common-law doctrine of incompatiiity          prohibii one
     person from holding two offices where one office might impose its policies on the other or
     subject it to control in some other way. Attorney General Opinion JM-129 (1984); see
     also i%omas v. Abematly Cow@ Line In&p. Sch. Diti., 290 S.W. 152 (Tex. &mm%
     App. 1927, judgm’t adopted); Stole ex rel. Brentam v. Mmlin. 51 S.W.Zd 815 (Tex. Civ.
     App.-San Antonio 1932, no writ). In Attorney General Opiion TM-129, this office
     concluded that the doctrine of incompatibiity prevented a member of a board of trustees
     of a community college gem serving as a county commissioner.

              You enclose a letter written by the Texas Education Agency’s chief counsel to a
     citizen concluding that the two offices at issue here are incompatible on the basis of
     Attorney General Opiion TM-129. The letter argues that the two offices are incom-
     patible, in part, because of the duties assigned to county commissioners in chapter 19 of
     the Texas Education Code, which provides for the creation of countywide independent
     school districts and for the detachment, annexation, and consolidation of school districts.

             A county commissioners court has various duties under chapter 19. Some appear
     to be ministerial, see, e.g., Educ. Code $3 19.003(g) (duty to canvass the returns and
     declare the result of an election under chapter 19), .022 (duty to enter order redetlning
     boundaries of school district following certain elections), .024 (duty to order an election
     on petition for creation of a school district by detaching territory from existing districts),
     ,054, .083, but others are clearly discretionary in nature. For example, a commissioners
     court is required to equitably allocate indebtedness when school districts assume a portion
     of the indebtedness of another, and to equitably allocate personal property between
     receiving districts. Id. 3 19.004. Section 19.021 authorizes a commissioners court to
     create enlarged districts by annexing one or more school districts, provided that a majority
     of the board of trustees of each affected district approves the annexation. Under section
      19.023, annexation of school districts in certain counties may be initiated by petition.
     Subsection (d) requires the county commissioners court to conduct a hearing to consider
     the social, economic, and educational effects of the proposed annexation. Id. 8 19.023(d).


                                                p.   1659
Mr. Lionel R Meno - Page 2                 (DM-311)




The county commissioners court is required to order an election only if it determines that
the proposed amtexation appears to be in the best interests of the school districts affected.
Id. In addition, a wunty wmmissioners court is authorized to abolish and ammx any
common school district located entirely within its county if a format application or request
is submitted by the trustees of the wmmon school district. Id. 5 19.171(a): “The
wmmissioners court shah ammx the territory of the abolished district to one or more
wntiguous independent school districts located entirely within its county, in such manner
as may be determined by order of the wmmissioners court.” Id. 5 19.17 1(b); see also id.
58 19.024(h) (duty to appoint board of trustees following creation of certain school
districts),.025..026,:056.

         Based on our review of chapter 19 of the Education Code, we agree with the
Texas Education Agency’s conclusion that the offices of wunty wmmissioner and public
school district trustee are incompatible because the statutory basis exists for a county
commissioners court to impose its policies on a school district or otherwise control it with
respect to detachment, annexation and consolidation. We note that on several occasions,
this office has held that the offices of county wmmissioner and public school district
trustee are not incompatible. See Attorney Genera) Opiions C-43 (1963); V-63 (1947);
Letter Opinion No. 92-10 (1992). These prior opinions failed to consider the role of the
county wmmissioners court in the detachment, annexation, and wnsolidation of school
districts. Accordingly, Attorney General Opinions V-63 and C-43 and Letter Opiion No.
92-10 are overruled to the extent they are inwnsistent withjhis opinion.


                                   SUMMARY

               The offices of county wmmissioner and public school district
          trustee are incompatible. Attorney General Opinions V-63 (1947)
          and C-43 (1963) and Letter Opinion No. 92-10 (1992) are overruled
          to the extent they are inconsistent with this opinion.




                                                       DAN MORALES
                                                       Attorney General of Texas




                                           p.   1660
Mr. Lionel R Meno - Page 3           (DM-311)




JORGE VEGA
Fii Assistant Attorney General

DREW T. DURHAM
Deputy Attorney Gened for Crimind Justice

JAVJER AGUILAR
Special Assistant Attorney General

RENEAH.rcKs
State Solicitor

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by May R. Crouter
Assistant Attorney General




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