                              ATTORNEYGENERAL                     OF   TEXAS
                                           GREG       ABBOTT




                                            September 25,2006



The Honorable Jeff Wentworth                            Opinion No. GA-0468
Chair, Committee on Jurisprudence
Texas State Senate                                      Re: Whether a member of a school district board
Post Office Box 12068                                   of trustees may simultaneously serve as county
Austin, Texas 7871 l-2068                               clerk of the county in which the school district is
                                                        located (RQ-0470-GA)

Dear Senator Wentworth:

        You ask whether a member of a school district board of trustees may simultaneously                 serve
as county clerk of the county in which the school district is located.’

        You indicate that a trustee of the San Marcos Consolidated Independent School District is
a candidate for county clerk of Hays County in the November election. See Request Letter, supra
note 1, at 1. If she is elected, her term as county clerk would begin on January 1,2007. Id. Her term
as school trustee expires in May 2008. See id. In determining whether she may serve in both offices
simultaneously, we must address article XVI, section 40 of the Texas Constitution as well as the
common-law doctrine of incompatibility.         See TEX. CONST. art. XVI, 5 40.

        Article XVI, section 40(a) provides that “[n]o person shall hold or exercise at the same time,
more than one civil office of emolument.” Id. A county clerk receives a salary and thus holds an
office of emolument. See TEX. LOC. GOV’T CODE ANN. 5 152.011 (Vernon 1999) (commissioners
court of a county shall set the amount of the compensation for county and precinct officers). On the
other hand, a school district trustee “serve[s] without compensation,” and thus does not hold an
offtce of emolument. See TEX. EDUC. CODE ANN. 5 11.061(d) (.Vemon 2006). As a result, article
XVI, section 40 does not bar a member of a school district board of trustees from simultaneous
service as a county clerk.

         We must also consider the common-law doctrine of incompatibility, which has three aspects:
self-appointment, self-employment, and conflicting loyalties. Tex. Att’y Gen. Op. No. GA-0015
(2003) at 1. Because a county clerk neither appoints nor employs a school trustee, and a school



           ‘See Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to
Honorable Greg Abbott, Attorney General ofTexas (Mar. 22,2006) (on file with the Opinion Committee, also available
a~ http:/lwww.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Jeff Wentworth      - Page 2        (GA-0468)




trustee neither appoints nor employs a county clerk, the first two aspects of the doctrine are not
applicable to the situation you pose. The third aspect ofthe doctrine+onflicting loyalties-derives
from a 1927 opinion of the Texas Commission of Appeals that found the offices of school trustee
and city alderman 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 tire 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. Disk, 290 S.W. 152,153 (Tex. Comm’n App. 1927,
Judgm’t adopted) (citation omitted).

         It is well established that both positions must be offices in order for conflicting loyalties
incompatibility to be applicable. See Tex. Att’y Gen. Op. Nos. GA-0350 (2005) at 4, GA-0273,
(2004) at 3, JM-1266 (1990) at 4. A substantial majority of attorney general opinions involving
conflicting loyalties incompatibility address situations in which both offices constitute membership
on a local governing board. But the concept has also been applied, as here, where one of the offices
does not constitute membership on a local governing board but involves some other official position.
The attorney general has said, for example, that a county attorney may not serve on the board of
trustees of a school district located in his county because a county attorney is authorized to
investigate matters and initiate actions involving school trustees. See Tex. Att’y Gen. LO-95-029,
at 4. For similar reasons, a district judge is barred from serving as a trustee of an independent school
district located within his jurisdiction. See Tex. Att’y Gen. LO-98-094, at 3. Moreover, if there is
a close and frequent relationship between a school district and a sheriffs office, particularly where
the district embraces an unincorporated area of the county, a sheriff may not simultaneously serve
as a school trustee of that district. Tex. Att’y Gen. Op. No. GA-0328 (2005) at 4.

         On the other hand, this office has declared that a member of a school district board oftrustees
is not as a matter of law prohibited from simultaneously holding the office of county treasurer. See
Tex. Att’y Gen. Op. No. JC-0490 (2002) at 1. That opinion reviewed the duties of a county treasurer
and found that, although a number of statutes relate peripherally to the duties of treasurer with regard
to school funds, these statutes “appear to prescribe purely ministerial duties.” Id. at 3. The opinion
also discussed section 113.902 of the Local Government Code, which requires a county treasurer to
“direct prosecution for the recovery of any debt owed to the county,” and to “supervise the collection
of the debt.” Id. (quoting TEX. Lot. GOV’T CODEANN. § 113.902 (a)). The opinion noted, however,
that this duty was non-exclusive, and that if it were determined that funds were owed to the county
The Honorable Jeff Wentworth      - Page 3       (GA-0468)




by the school district, the commissioners court would be the proper authority to initiate suit to
recover those funds. Id. at 4. Accordingly, this office concluded that a county treasurer was not
barred as a matter of law from simultaneously serving as a school district trustee. See id. The
opinion cautioned, however, that article XVI, section 65 of the Texas Constitution might, in the long
run, complicate such dual service. See id. That provision effects the automatic resignation of certain
county and district officers, including county clerks, who announce their candidacy or become a
candidate for another office of profit or trust “at any time when the unexpired term of the [county
or district] office then held shall exceed one (1) year.” See TEX. CONST. art. XVI, 5 65(b).

        We must now determine whether holding the office of county clerk is incompatible with
service on a school district board of trustees. The Texas Constitution provides, in relevant part:

               Sec. 20. There shall be elected for each county, by the qualified
               voters, a County Clerk, who shall hold.his office for four years, who
               shall be clerk of the County and Commissioners Courts and recorder
               of the county

Id. art. V, 5 20. Various statutes prescribe other duties of a county clerk. Section 5 1.402 of the
Government Code declares that a county clerk may ‘issue marriage licenses” and “take affidavits
and depositions.” TEX. GOV’T CODE ANN. § 51.402(a) (Vernon 2005). That statute also requires
the clerk, “[o]n the last day of each term of the court, [to] make a written statement of tines and jury
fees received since the last statement.” Id. 3 5 1.402(b). A county clerk has, in addition, prescribed
duties under the Local Government Code.              She serves, for example, as the clerk of the
co&issioners      court, which requires, inter al& that she “keep the court’s books, papers, records,
and effects” and “issue the notices, wrns, and process necessary for the proper execution of the
court’s powers and duties.” TEX. Lot. GOV’T CODEANN. 3 81.003(a) (Vernon Supp. 2006). Other
duties relate to the collection of fees for filing, issuing, and certifying various documents, the
impanelingofjuries,     and the swearingofwitnesses.    See id. $5 118.011, ,051 (Vernon 1999 & Supp.
2006). Finally, the clerk has numerous duties relating to the recording of various documents and
instruments, including deeds, mortgages,~subdivision plats, and military discharges. Id. 5 5 191 .OOl,
 ,004, 192.001, .0015, ,002.

         None of the aforementioned responsibilities indicate that there is any conflict between the
duties of a county clerk and the duties exercised by an independent school district trustee. We
conclude, therefore, that a member of a school district board of trustees is not as a matter of law
prohibited from simultaneously serving as county clerk of a county in which the school district is
located. As stated in Attorney General Opinion JC-0490, however, we caution that article XVI,
section 65 of the Texas Constitution may ultimately complicate such dual service. See Tex. Att’y
Gen. Op. No. JC-0490 (20.02) at 4.
The Honorable Jeff Wentworth       - Page 4    (GA-0468)




                                        SUMMARY

                       A member of a school district board of trustees is not as a
               matter of law prohibited from simultaneously serving as county clerk
               of a county in which the school district is located.

                                              Very truly yours,




RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
