                               TEE     ATTORNEY    GENERAL
                                          OF TEXAS

                                            July   28,    1988
.Jxx MA-X
,,,“,‘GRNEY    GENERAI.




              Honorable   Kenneth Ii. Ashworth          Opinion   No.   JM-934
              Commissioner
              Texas Higher Education                    Re:   Dual membership    on Board
                  Coordinating   Board                  of Trustees   of Houston    Inde-
              P. 0. Box 12788                           pendent School     District    and
              Austin, Texas      78711                  Houston     Community     College
                                                        District    (RQ-1421)

              Dear   Mr. Ashworth:

                    You ask three questions       which arise out of the proposal
              of the Board of Education       for the Houston Independent          School
              District to divest       itself of the      management,    control,      and
              operation   of the Houston      Community    College System       pursuant
              to section 130.016 of the Texas Education            Code.    The Houston
              Community   College    System    was established       by   the     Houston
              Independent     School     District       *    accordance       with     the
              predecessor   provision    of   section1y30.011       of the     Education
              Code.   &    Attorney     General Opinions       M-876, M-851       (1971).
              Section 130.011 provides        that an     "independent    school      dis-
              trict junior college" may         be established     by an    independent
              school district      which    meets certain      requirements.        Educ.
              Code 5 130.011(a).       The board of trustees of the independent
              school district     serves as board of trustees        of the community
              college district,     but exercises     different    powers and      duties
              for each entity.      Attorney     General Opinions MW-504          (1982);
              M-876    (1971).     The   community     college     district     and    the
              independent    school    district that      created it     are     separate
              legal entities.      Attorney General Opinion MB-504           (1982).

                    The Houston   Independent   School   District      Board     of
              Education now intends to create a separate board of trustees
              for the community  college system in accordance      with    section
              130.016 of the Education   Code, which provides     in part:

                              (a) A junior      college established    by   an
                          independent     school    district   . . . may    be
                          governed,   administered,     and controlled  by and
                          under the direction       of a   senarate board   of
                          trustees,   which may be placed in authority      by
                          either of the following procedures:




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Honorable       Kenneth     H. Ashworth       - Page    2      (JM-934)



                                                                              -.


                     (1) the board of trustees of an          inde-
                 pendent school      district     or  citv   school
                 district     which      has    the    manaaement,
                 control.   and overation     of a iunior colleae
                 may   divest    itself    of   the    management,
                 control,    and   operation      of  that   junior
                 college so maintained       and operated by     the
                 school board by appointing        for the   junior
                 college    district     a   separate   board     of
                 trustees   of nine members:      or

                     (2)  [petition and     election  procedure
                 on question    of   whether school   board   of
                 trustees  shall    be divested    of authority
                 as governing   board of junior college     dis-
                 trict.]   (Emphasis added.)


Educ.    Code    5 130.016.

        Your    first     two   questions     are   as follows:

                1. May a trustee who currently   serves   as
            a member of both the HCCS Board and the     HISD                  .-.,
            Board retain his or her position   on the   HCCS
            Board of Trustees  if  he or she resigns    from
            the HISD Board of Education?

                2.  If the answer to the first question    is
            yes, must the   trustee resign    from the  HISD
            Board of Education,   or  can the member   elect
            to serve   on the   new HCCS  Board while   also
            serving as a trustee of the HISD?

We will     deal   with     these   two     questions       together.

      At present,     the Board     of   Education    for   the    Houston
Independent   school     District governs      the Houston      Community
College System, applying Education         Code provisions       relevant
to community    colleges when it convenes to make decisions             for
the community    college system. It is not, however,           two boards
composed   of the same persons,      even though, as the        attorneys
for   the   community     college    system    and    the     independent
school district     inform    us,   it   conducts     the   business     of
the independent     school    district    and the     business     of   the
community    college      system     at   different       meetings      and
identifies   itself as     both "the     Board of Education       for   the
Houston Independent       School    District"     and    "the   Board    of
Trustees   for the Houston Community       College System."                   -.




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       Honorable     Kenneth   H. Ashworth    - Page   3   (JM-934)




             The underlined      language     of    section    130.016    of    the
       Education   code shows that only the board of the             independent
       school    district    exists    prior     to   the   appointment      of   a
       separate    board    for   the   junior      college   district.         The
       language of     section 130.017      of the     Education    Code,    which
       provides   for a petition      and election       to divest the     school
       board of its     authority   over ofa ~u~.~~~o;egg;          also   demon-
       strates'that    only the board                                independent
       school district     exists as a legal entity before the appoint-
       ment of a board for the         junior college district.           Section
       130.017(a)    of the Education     Code provides     as follows:

                       (a) On a petition     signed by 10 percent of
                   the qualified    electors    of    the   independent
                   school district    or city school district,       the
                   board of trustees within       30 days shall     call
                   an election after the petition has been          duly
                   presented   on the   proposition    of whether    the
                   school board of trustees      shall be divested    of
                   ;its authoritv   as   aovernina     board   of   such
                   iunior colleae district.        (Emphasis added.)

       Educ.   Code 5 130.017(a).

             Thus, under      the Education     Code, the     trustees   of the
       Houston Independent       School District       are not   members of      a
       board    of   trustees    for   a   community     college    and    cannot
       therefore    Vetain"     membership     on   the   separate     board    of
       trustees    for the community      college system.      Members   of    the
       Houston Independent      School    District Board      of Trustees     may
       become members      of   the   newly    created    separate     board    of
       trustees    for the junior college district only by appointment
       to it pursuant     to section     130.016 or 130.017 of the         Educa-
       tion Code.

             The appointment    of the    new board is, however,       subject
       to the common law doctrine       of incompatibility.       It is well
       established   that all officers who have the appointing            power
       are disqualified     for  appointment    to offices    to which     they
       may appoint.     mlinaer    v. Cla&      0 S.W.2d 666 (Tex.        1928)
       (commissioners    court could    not &mploy county      judge as     its
       attorney).    This rule has been      applied to bar the board         of
       trustees   of a school district     from appointing    themselves      as
       the board    of   equalization     for the   district.      St.    Louis
       Southwestern    Railwav   Co.   of   Texas v.    Naples    I .S.D.,    30
       S.W.2d 703 (TeX. Civ. App. - Texarkana        1930, no writ).        The
       court stated as follows:

,F-.




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Honorable     Kenneth     H. Ashworth    - Page    4   (JM-934)




            It is contrary to the      policy of the law     for
            an officer    to   use his   official    appointing
            power to place     himself in    office, so    that,
            even in the absence of statutory        inhibition,
            all officers     who have   the appointing     power
            are   disqualified     for  appointment    to    the
            offices to which they may appoint.

 t. Louis    Southwest    rn    Railwav    Co.      f Texas     v.    N aules
F.S.D..  sunra, at      7:6 (quoting      46 C.J"     Officers    5 43,     at
940, see 67     C.J.S. Officers        § 23 at 269).       A trustee       who
serves on    the    board    of   the    Houston     Independent      School
District may not be appointed         to the newly created board            of
trustees   for   the Houston       Community    College    System.      If   a
trustee resigns from the board           of trustees for the        Houston
Independent    School    District     and    is   replaced     by   another
person so that      he no longer      continues     in the   office as       a
holdover   officer pursuant      to article XVI, section 17 of             the
Texas Constitution,      the    common law      doctrine   of incompati-
bility will no longer        bar his appointment         to the board       of
trustees   for the Houston Community         College System.       Attorney
General Opinion O-410 (1939)           (member of board of        directors
of Texas Tech      could not be      appointed    president    of   college
by board when successor       had not     been appointed).        See    also
Attorney  General Opinion C-452 (1965).~

       Your   third     question    is as follows:

                3. May a current member   of the HISD   and
            HCCS Boards serve the remainder  of his or her
            current term on both  boards after a   separa-
            tion of the two boards has occurred?

       In view of our answer           to your first     two   questions,   we
need   not answer your third          question.

                                   SUMMARY

                     The   board of     trustees   of the    Houston
               Independent     School    District,     which 'esta-
               blished the Houston Community        College System
               pursuant    to   the    predecessor     of     section
               130.011 of the      Education   Code, governs       the
               community    college     system     but    does     not
               constitute   a separate board of trustees           for
               the   community     college    system.      When    the
               board of trustees of the independent            school
               district    acts    to   divest    itself    of     the
               management,    control,     and operation      of   the




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     Honorable   Kenneth   H. Ashworth     - Page   5   (JM-934)




                  community   college district      by appointing      a
                  separate board of      trustees   for it    pursuant
                  to section 130.016 of the Education         Code, it
                  may not appoint     any of its      own members    to
                  the   separate    board of      trustees    of    the
                  community   college district.      The common     law
                  doctrine    of   incompatibility      prevents
                  officer from using      his appointive     power   :'d
                  appoint himself to an       office.    If a member
                  of the independent      school district      resigns
                  his office and is replaced so that he is           no
                  longer a holdover officer under article XVI,
                  section 17, of     the Texas Constitution,        the
                  common law doctrine of incompatibility           will
                  not prevent    his appointment       as trustee    of
                  the   separate    board   of    trustees    for   the
                  community   college district.




                                              JIM      MATTOX
-.                                            Attorney  General    of Texas

     MARYKHLIRR
     First  Assistant   Attorney   General

     LOU MCCREARY
     Executive Assistant     Attorney     General

     JUDGE ZOLLIE STKAKLKY
     Special Assistant  Attorney        General

     RICK GILPIN
     Chairman,  Opinion    Committee

     Prepared by Susan L. Garrison
     Assistant Attorney General




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