                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                                July 30,2004



The Honorable Jose R. Rodriguez                     Opinion No. GA-0224
El Paso County Attorney
500 East San Antonio, Room 503                      Re: Whether a member of the board of directors of
El Paso, Texas 79901                                a water improvement district may simultaneously
                                                    serve as a school district trustee (RQ-0174-GA)


Dear Mr. Rodriguez:

        You ask whether a member of the board of directors of a water improvement                district may
simultaneously serve as a school district trustee.’

        You indicate that the individual in question is a member of the board of directors of the
Tornillo Water Improvement District (TWID), which was created in 1987 pursuant to article XVI,
section 59, of the Texas Constitution and chapters 49 and 54 of the Water Code. See Request Letter,
supra note 1, at 1. A district created under chapter 49 of the Water Code is authorized to “levy and
collect a tax for operation and maintenance purposes.”        TEX. WATER CODE ANN. $ 49.107(a)
(Vernon Supp. 2004). Thus, TWID has the power of taxation within its geographical jurisdiction.

          You further state that in May 2003, the individual “was elected to and subsequently accepted
the office of trustee” of the Tomillo Independent School District (TISD). Request Letter, supra note
 1, at 1. A school district, like a water improvement district created under chapter 49 of the Water
Code, also enjoys the power of taxation. See TEX. EDUC. CODEANN. 9 11.152 (Vernon 1996) (“[t]he
trustees of an independent school district may levy and collect taxes”). You indicate that the
geographical boundaries of TWID overlap with those of TISD. See Request Letter, supra note 1,
at 1.

        Article XVI, section 40 of the Texas Constitution prohibits an individual from holding more
than one office of emolument.    See TEX. CONST. art. XVI, 0 40. A member of the TISD board of
trustees does not hold an office of emolument because the office of school trustee is not a
compensated position. See TEX. EDUC. CODE ANN. 9 11.06 1(d) (Vernon 1996) (“[t]he trustees [of
a school district] serve without compensation”).    Thus, article XVI, section 40 is not a bar to the
holding of the two offices under consideration here. Your concern is whether the common-law


         ‘See Letter from Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable Greg Abbott, Texas
Attorney General (Jan. 20, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafterRequest Letter].
 The Honorable Jose R. Rodriguez      - Page 2       (GA-0224)




doctrine of incompatibility   prohibits the individual   in question from simultaneously   holding both
positions.

          The common-law doctrine of incompatibility has three aspects: self-appointment,       self-
 employment, and conflicting loyalties.      See Tex. Att’y Gen. Op. No. GA-0032 (2003) at 4.
 Conflicting loyalties incompatibility was first recognized by a Texas court in Thomas v. Abernathy
 County Line Independent School District, 290 S.W. 152 (Tex. Comm’n App. 1927, judgm’t
 adopted), in which the court declared:

                         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 firepreventionregulations.
                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, 290 S.W. at 153 (citations omitted).

         As you note, the two entities under consideration, the TWID and the TISD, have overlapping
geographical boundaries, and both have the power of taxation. In Attorney General Opinion
GA-0032, we said, quoting two prior attorney general opinions, that “‘[i]f two districts with
overlapping geographical jurisdictions each have the power of taxation, . . . the potential for
conflict is insurmountable.“’    Tex. Att’y Gen. Op. No. GA-0032 (2003) at 5 (citations omitted).
Furthermore,     “‘[wlhere  the object  of each district is to maximize its own revenues, a single
individual would have great difficulty in exercising his duties to two separate and competing
masters.“’ Id. Opinion GA-0032 found that, as a result, “an individual may not simultaneously serve
both as trustee of the San Jacinto College District and as director of the Clear Brook Municipal
Utility District.” Id.

       Similar reasoning is applicable to the situation you describe here. As a result, an individual
may not simultaneously serve as a trustee of the TISD and a member of the board of directors of the
TWlD.

         You also ask whether, if the person in question is barred by the common-law doctrine of
incompatibility from serving in both positions, he automatically resigned his position on the TWID
board when he was elected to and qualified for the office of school trustee. See Request Letter,
supra note 1, at 2-3. Ln Attorney General Opinion JC-0363, this office considered whether an
individual who was a member of the board of directors of the Wilson County Memorial Hospital
District automatically resigned that position when he was elected to and assumed the office of mayor
The Honorable Jose R. Rodriguez    - Page 3      (GA-0224)




of La Vemia. See Tex. Att’y Gen. Op. No. JC-0363 (2001) at 1. Citing the principle established by
the Texas Supreme Court in Pruitt v. Glen Rose Independent School District, 84 S.W.2d 1004,1006
(Tex. 1935), that qualification for and acceptance of a second office operates as an automatic
resignation from the first, Opinion JC-0363 concluded that the person in question resigned from the
office of director of the Wilson County Memorial Hospital District when he assumed the office of
mayor. See Tex. Att’y Gen. Op. No. JC-0363 (2001) at 2-3. Likewise, in the situation you pose, the
individual automatically resigned his office as amember of the board of directors of the TWID when
he was elected to and assumed the position of a trustee of the TISD.
The Honorable Jose R. Rodriguez    - Page 4       (GA-0224)




                                      SUMMARY

                       An individual may not simultaneously serve as a member of
               the board of directors of a water improvement district created under
               chapter 49 of the Water Code and as a trustee of an independent
               school district when the two districts have overlapping geographical
               boundaries. A member of the board of directors of the Tomillo Water
               Improvement District automatically resigned his position when he
               was elected to and qualified for the position of a trustee of the
               Tomillo Independent School District.

                                              Very truly yours,




                                                     G ABBOTT
                                              Attorney General of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
