              THE   ATTORNEY          GENERAL
                        OF   'TEXAS


                        August 23, 1989




Honorable Rene Guerra        Opinion No.   ~~-1887
Criminal District Attorney
Hidalgo County Courthouse    Re: Whether the common law doc-
Edinburg, Texas 78539        trine of incompatibility may be
                             overcome by a charter provision
                             of a home rule city which speci-
                             fically permits such dual office
                             holding (RQ-1675)

Dear Mr. Guerra:

        you have requested  our opinion as to whether a home
rule city may overcome the common law doctrine of incompat-
ibility    by means of a provision in its city charter.

     The charter of the City of Alamo, a home rule       city,
provides in pertinent part in article 1.1, section 5:

        [T]he Mayor, with the approval of at least
        two (2) of the four (4) Commissioners,    may
        serve as City Manager at a salary that is set
        and approved by at least two (2) of the four
        (4) Commissioners; provided that if he/she is
        serving as City Manager,  he or she will not
        receive compensation for services as Mayor.

Article IV, section 1, of the charter provides in    pertinent
part:

        The City Manager shall be responsible to the
        Board of Commissioners    for the efficient
        administration of the affairs of the City of
        Alamo and shall hold office at the pleasure
        of the Board of Commissioners.      The City
        Manager may be     removed from office     by
        majority vote of all the members of the Board
        of Commissioners.  The action of the Board of
        Commissioners suspending or removing the City
        Manager shall be final.

Thus, as you indicate, the charter specifically makes the
city manager accountable to the board of commissioners,   of
which the mayor is a member.  On the other hand, the charter
also specifically permits "the mayor, with the approval   of


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Honorable Rene Guerra - Page 2    (JM-1087)




at least two of the four commissioners,VV to "serve as** city
manager.

     Absent the language of the city charter provision,    it
is abundantly clear that a single individual may not serve
simultaneously in two positions in which one is accountable
to the other. Letter Opinion 89-57 (1989); Letter Advisory
No. 114 (1975).     This conclusion is based upon the long-
standing common law doctrine of incompatibility.   &= Thomas
V.
2    ernat    Co nt                      Dist., 290 S.W. 152
(Tex. Comm'n App. 1927, judgmt adopted).   The question here
is whether   a city charter provision     may overcome   this
common-law rule.

     Under the     home   rule    amendment    to    the    Texas
Constitution, article XI, section 5, a home rule city has
all those powers which are not inconsistent             with the
constitution   or   general  laws    of the      state.     &lDha
1,                                 411 S.W.2d 417 (Tex. Civ.
App.), cert.,         389 U.S. 1005 (1967). A home rule city
need not look to the legislature for a particular grant of
power. Rather, it need concern itself only with limitations
imposed on its power. Lower Colorado River Auth. v. Citv of
San,         523 S.W.2d 641, (543 ITex. 1975).      Furthermore.
any limitation    thereon   must appear
                                   .        with    unmistakable
clarity. Id. at 645.

     The only such qqlimitationfi'which might restrict       the
city's authority in this instance is section 5.001 of        the
Civil Practices & Remedies Code, which provides:

           The rule of     decision  in this    state
        consists of those portions of the common law
        of England that are not inconsistent with the
        constitution or the laws of this state, the
        constitution of this state, and the laws of
        this state.

     In our opinion, this provision       is not really    a
*'limitation." It does not indicate a legislative intent to
make common   law incompatibility  the absolute  law in this
state, but only in the absence of other authority to the
contrary.   In this instance, we believe that a city charter
provision which is not contrary to a svecific state law, or
which does not purport to act in a field which has been
fully occupied by the legislature, is itself sufficient   to
overcome the common law.

     In Dal1 as Rv . 8 Terminal Co. v. Bankston, 33 S.W.2d 500
(Tex. Civ. App. - Dallas 1930), rev'd on other srounds,     51
S.W.2d 304    (Tex. Comm'n App. 1932), holding       approved,
several ordinances required that a streetcar operator, inter


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Honorable Rene Guerra - Page 3     (JM-1087)




gJ,.&& keep a "vigilant watch" and that he be prepared        to
stop in the shortest time and space possible upon any
appearance of danger. The ordinances were somewhat broader
than the standard       of care required      by   common   law.
Nevertheless, the court, citing Citv of Dallas v. Gila,      199
S.W. 1144 (Tex. Civ. APP. - Dallas 1917, writ ref'd), held
that if an ordinance     is passed under constitutional      and
statutory authority,    it repeals the common       law in all
respects in which inconsistencies exist. DB,              suvra,
at 502; see M,                       564 S.W.2d 471 (Tex. Civ.
APP. - Dallas    1978, no writ).    But     Gv.f
                                             enusa
Houston, 10 S.W.2d 772 (Tex. Civ. App. - Galveston 1928, no
writ) (city ordinance     imposing liability on owner of a
rental automobile void because it contravenes common law,
questioned    by    Supreme   Court     in  citv    of    COrDUS
Christi v. Texas Driverless C o., 190 S.W.2d 484           (Tex.
1945)).

     Likewise, in the situation you pose, the Alamo city
charter has specifically provided for the contingency that a
single individual may serve simultaneously as both mayor and
city manager.  The conditions  necessary for the holding   of
both positions  are detailed in the charter, as well as
provisions for the mayor's removal as city manager.  In this
instance, we believe that the charter is sufficient to over-
come the common law doctrine of incompatibility.       As a
result, there is no impediment to the mayor of Alamo holding
the position   of city manager under the       circumstances
provided in the charter.

                        SUMMARY

           Under the terms of the charter of the City
        of Alamo, the mayor may, in certain circum-
        stances,    simultaneously  serve   as   city
        manager.   The common law doctrine of incom-        _
        patibility does not prevail over the charter
        provision.                   I




                                    JIM     MATTOX         -
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LQU MCCREARY
Executive Assistant Attorney General



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JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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