 .+- OFFICE   OF THE ATTORNEY   GENERAL   . STATE   OF TEXAS

   JOHN       CORNYN




                                                September 20,2002



The Honorable Frank Madla                                      Opinion No. JC-0455A
Chair, Senate Committee on
  Intergovernmental Relations                                  Re: Clarification   of Attorney General Opinion
Texas State Senate                                             JC-0455 (2002)
P.O. Box 12068
Austin, Texas 7871 l-2068

Dear Senator Madla:

        In Attorney General Opinion JC-0455 (2002), we were asked whether a member of a
governmental body that is located within a groundwater conservation district with a population of
less than 50,000 was eligible to serve as a member of the district’s board of directors. As we noted
in the opinion, your particular concern was with the Cow Creek Groundwater Conservation District.

         The opinion correctly observed that section 36.05 1(b) of the Water Code renders ineligible
for appointment as a director of a groundwater conservation district, in any district containing 50,000
or more persons, any member of the governing body of another political subdivision. Because
districts with a population of less than 50,000 are expressly exempted from section 36.051(b), a
member of another governmental body in a district of less than 50,000 population is not rendered
ineligible to serve by virtue of that statute.

         We determined, however, that section 36.05 1(b) did not repeal the common-law doctrine of
incompatibility with regard to districts of less than 50,000 population. Common-law incompatibility
has three aspects: self-appointment, self-employment, and conflicting loyalties. Tex. Att’y Gen. Op.
Nos. JC-0054 (1999), JM-1266 (1990). Attorney General Opinion JC-0455 relied on the conflicting-
loyalties portion of the doctrine to conclude that a county commissioner in Kendall County was
barred by the conflicting loyalties aspect of incompatibility from simultaneously serving as a member
of the Cow Creek Groundwater Conservation District because of overlapping geographical
boundaries between the Cow Creek Groundwater Conservation District and Kendall County,
overlapping duties with regard to water, as well as other potential areas of conflict. In your request
letter, however, you asked “whether elected officials of a governmental body, in a district with a
population of less than 50,000, who appoint each other to a groundwater conservation district
violate[] state law and[/]or Attorney General Opinion Letters LO-93-70 and LO-94-020.“’ The



         ‘Letter from Honorable Frank Madla, Chair, Senate Committee on Intergovernmental Relations, to Honorable
John Cornyn, Texas Attorney General at 1 (Aug. 23,200l) (on file with Opinion Committee).
The Honorable Frank Madla - Page 2              (JC-0455A)




opinion failed to address the effect of the self-appointment doctrine. Although we were not informed
that the members of the Kendall County Commissioners Court had appointed themselves, as a body,
as the initial temporary directors of the district until after JC-0455 was issued, the request letter did
in fact ask about self-appointment in general terms.

        Self-appointment incompatibility derives from the Texas Supreme Court’s decision in
Ehlinger v. Clark, 8 S.W.2d 666 (1928), in which the court observed that “because of the obvious
incompatibility of being both a member of a body making the appointment and an appointee of that
body that the courts have with great unanimity throughout the country declared that all officers who
have the appointing power are disqualified for appointment to the offices to which they may
appoint.” Ehlinger, 8 S.W.2d at 674. As a result, it was unnecessary for us in Attorney General
Opinion JC-0455 even to reach the issue of conflicting-loyalties incompatibility. Members of the
commissioners court of a county are prohibited from appointing themselves to the board of directors
of a groundwater conservation district, and consequently, such appointments would not take effect.

         The fact that such appointments were void ab initio means that we erred, in Attorney General
Opinion JC-0455, in considering the effect of such appointments with regard to the Cow Creek
Groundwater Conservation District. We noted there “the well-established principle that qualification
for and acceptance of a second office operates as an automatic resignation from the first office,” and
concluded that, “if a county~ commissioner . . . accepts a position as a director of a groundwater
conservation district, he automatically vacates the office of county commissioner.” Tex. Att’y Gen.
Op. No. JC-0455 (2002) at 6. As we have indicated previously, however, a county commissioner
in Kendall County could not have accepted such a position: he was ineligible for the appointment.
It follows that, because the purported appointments at issue here were void, the members of the
Commissioners Court of Kendall County, in attempting to make those appointments, would not
thereby vacate their respective offices on the Commissioners Court of Kendall County,
The Honorable Frank Madla - Page 3           (JC-0455A)




                                      SUMMARY

                       That portion of Attorney General Opinion JC-0455 (2002)
               which implied that members of the Kendall County Commissioners
               Court vacated their county commissioner offices when they attempted
               to appoint themselves as temporary directors of the Cow Creek
               Groundwater Conservation District was in error. Such appointments
               violate the self-appointment aspect of the common-law doctrine of
               incompatibility and are thus void ab initio.




                                            Attorney General of Texas


HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
