   OFFICE OF THE ATTORNEY GEKERAL . STATE OF TEXAS

   JOHN    CORNYN




                                           April 152002



The Honorable Bobbye C. Hill                         Opinion No. JC-0490
Wheeler County Attorney
P.O. Box 469                                         Re: Whether a member of a school district board
Wheeler, Texas 79096                                 of trustees may simultaneously hold the office of
                                                     county treasurer (RQ-045 8-JC)


Dear Ms. Hill:

        You have requested our opinion as to whether a member of the board of trustees of an
independent school district may simultaneously hold the office of county treasurer. For the reasons
explained below, we conclude that she may do so.

         You indicate that on May 5,2001, a particular individual was elected to fill the balance of
a three-year term as a trustee of the Wheeler Independent School District. Subsequently, she was
appointed by the Commissioners Court of Wheeler County to fill the balance of a four-year term as
Wheeler County Treasurer. You ask whether she may simultaneously hold both positions.

        Article XVI, section 40 of the Texas Constitution provides that “[n-Jo person shall hold or
exercise at the same time, more than one civil office of emolument.” Both of the positions of which
you inquire are “offices,” in that the holders thereof exercise a sovereign function of government
“largely independent of the control of others.” See Aldine Indep. Sch. Dist. v. Stand& 280 S.W.2d
578,583 (Tex. 1955). An “emolument” for purposes of article XVI, section 40, has been described
as “a pecuniary profit, gain or advantage.” Iwin v. State, 177 S.W.2d 970, 973 (Tex. Crim.
App. 1944). It includes any amount received in excess of actual expenses. Tex. Att’y Gen. Op. No.
JM-1266 (1990) at 3; Tex. Att’y Gen. LO-95-001, at 2. Section 11.061 of the Education Code
requires that trustees of an independent school district “serve without compensation.” TEX. EDUC.
CODEANN. § 11.061(d) (V emon 1996). Because the office of school trustee is therefore not an
“office of emolument,” it follows that an individual is not barred by article XVI, section 40 from
simultaneously holding the offices of school trustee and county treasurer.

         That does not end our inquiry, however. Common-law incompatibility is independent of
article XVI, section 40. The doctrine has three aspects: self-appointment,    self-employment, and
conflicting loyalties. Tex. Att’y Gen. LO-95-029, at 2. Self-appointment and self-employment are
not implicated here because the county treasurer neither appoints nor employs members of the board
of trustees. Neither does the board of trustees appoint or employ the county treasurer. The third
aspect of cornmon-law incompatibility-conflicting       loyalties-is based on the 1927 decision in
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Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm’n App.
1927, judgm’t adopted). There the court found the offices of school trustee and city alderman to be
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 fire 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.

Id. at 153 (citations omitted).

         Conflicting loyalties incompatibility has been applied by the attorney general on many
occasions. It most often arises when one person seeks to be a member of two governing boards with
overlapping jurisdictions. If, for example, two governmental bodies are authorized to contract with
each other, one person may not serve as a member of both. Tex. Att’y Gen. Op. Nos. DM-3 11
(1994)( o ff ices of county commissioner and school district trustee are incompatible); JM-634 (1987)
(offices of city council member and school district trustee are incompatible). Conflicting loyalties
may also arise where one governmental body has the authority to impose its will on the other in any
matter whatsoever.       See Thomas, 290 S.W. at 153; Tex. Att’y Gen. Op. No. JM-129 (1984)
(membership on community college district board of trustees is incompatible with office of county
commissioner).

         Conflicting loyalties incompatibility has also been occasionally applied when one of the
offices is not a local governing board, but some other official position. A county attorney may not,
for example, serve on the board of trustees located within his county, because a county attorney
is authorized to investigate matters and initiate actions involving school trustees. Tex. Att’y Gen.
LO-95-029, at 4. For similar reasons, this office determined in Letter Opinion 98-094 that a district
judge may not simultaneously serve as a school trustee of a district located within his jurisdiction.
Tex. Att’y Gen. LO-98-094.         On the other hand, in Attorney General Opinion JC-0216, we
concluded that a municipal judge is not barred from serving as an elected junior college trustee. Tex.
Att’y Gen. Op. No. JC-0216 (2000). This latter opinion was based in part on the court’s decision
in Turner v. Trinity Independent School District, 700 S.W.2d 1 (Tex. App.-Houston           [ 14th Dist.]
 1983, no writ), which held that the simultaneous holding of the offices of school trustee and justice
of the peace does not violate the common-law doctrine of incompatibility.           Id. at 2. Attorney
General Opinion JC-0216 distinguished its holding from Letter Opinion 98-094 by noting that a
municipal court, like a justice court, is one of limited jurisdiction. Tex. Att’y Gen. Op. No. JC-02 16
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(2000) at 2. We must therefore determine whether there are any duties ascribed to the office of
county treasurer that would render its holding incompatible with that of school district trustee.

         The county treasurer is the “chief custodian of county funds,” who “shall keep in a
designated depository and shall account for all money belonging to the county.” TEX. Lot. GOV’T
CODEANN. 8 113.001 (Vernon 1999). As chief custodian of county funds, the treasurer’s duty is
to “keep an account of the receipts and expenditures of all money that the treasurer receives by virtue
of the office and of all debts due to and owed by the county.” Id. 5 113.002. The treasurer is to
“receive all money belonging to the county from whatever source it may be derived.” Id. 8 113.003.
“The fees, commissions, funds, and other money belonging to a county shall be deposited with the
county treasurer by the officer who collects the money,” and the “county treasurer shall deposit the
money in the county depository in a special fund to the credit of the officer who collected the
money.” Id. 0 113.021 (a)-(b). The treasurer is also directed to “disburse the money belonging to
the county,” and to “pay and apply the money as required by law and as the commissioners court
may require or direct, not inconsistent with law.” Id. 5 113.041(a) (Vernon Supp. 2002). See Agan
v. Comm ‘rs Court of Titus County, 922 S.W.2d 640, 645-46 (Tex. App.-Texarkana               1996, writ
granted), afyd in part, rev’d in part, 940 S.W.2d 77 (Tex. 1997) (disbursement of funds is one of
the “core functions” of county treasurer’s office and therefore treasurer has the “sole power” to
disburse funds). The treasurer has a ministerial duty to endorse a warrant presented to her unless she
has doubts about the “legality or propriety of an [instrument] presented . . . for payment.” TEX.Lot.
GOV’T CODEANN. 8 113.041(d) (Vernon Supp. 2002).


         A number of other statutes peripherally relate to the duties of the county treasurer with
respect to school funds, but all of these appear to prescribe purely ministerial duties. See, e.g., TEX.
AGFUC.CODEANN. 0 148.042 (Vernon 1982) (any sum recovered by suit on a slaughterer’s bond
“shall be deposited in the county treasury to the credit of the available school fund”); TEX. Lot.
GOV’T CODEANN. 9 116.113 (Vernon 1999) (county treasurer shall “immediately deposit with the
[county] depository to the credit of the county, district, or municipality any money received after the
depository is designated”); TEX. REV. CIV. STAT.ANN. art. 26881-l (Vernon Supp. 2002) (school
records in county with one county-wide independent school district and no common school district
“shall be transferred to the control and custody of the independent school district office, located at
the county seat, save and except the original financial records which shall be retained by the county
treasurer”); TEX. EDUC.CODEANN. 8 17.97-App. (Vernon 1996) (’         m county in which county school
administrative offices are abolished, original financial records shall be retained by county treasurer).

         One duty of the county treasurer merits further discussion. Section 113.902 of the Local
Government Code requires the county treasurer to “direct prosecution for the recovery of any debt
owed to the county,” and to “supervise the collection of the debt.” TEX. Lot. GOV’T CODEANN.
0 113.902 (Vernon 1999). In Trustees ofLytle SchoolDistrict v. Haas, 59 S.W. 830 (Tex. Civ. App.
1900, writ dism’d), the court held that the County Treasurer of Atascosa County, rather than the
Lytle School District, was the only official authorized to institute a suit to compel payment to the
district of funds held by Medina County. At that time, however, a county treasurer was the
“custodian of the school funds belonging to his county.” Id. at 83 1. Under current law, the “trustees
The Honorable    Bobbye C. Hill - Page 4        (JC-0490)




of an independent school district constitute a body corporate and in the name of the district may
acquire and hold real and personal property, sue and be sued, and receive bequests and donations
of other moneys or funds coming legally into their hands.” TEX. EDUC.CODEANN. 8 11.15 l(a)
(Vernon 1996).

         Conceivably, a county treasurer could initiate actions to recover funds owing to Wheeler
County by the Wheeler Independent School District. See TEX. Lot. GOV’T CODEANN. 9 113.902
(Vernon 1999). The county treasurer’s duty to prosecute such a suit is similar to a county attorney’s
duty to investigate matters and initiate actions involving school trustees, which this office concluded
in Letter Opinion 95-029 would preclude a county attorney from holding the office of school trustee.
But in this case, the county treasurer’s authority is not exclusive. The commissioners court, as “the
executive head of the county” and is thus “vested with authority to determine when suits or other
actions should be instituted to recover funds belonging to the county.” Simmons v. Ratlzff, 182
S.W.2d 827, 829 (Tex. Civ. App.-Amarillo         1944, writ ref d w.o.m.). In our opinion, the county
treasurer’s non-exclusive authority to initiate a suit to recover funds owed by the district to the
county does not rise to the level of incompatibility considered in Letter Opinion 95-029. Because
a county treasurer’s authority to bring suit against an independent school district is limited to the
recovery of funds owed by the school district to the county, and because even that limited authority
is not exclusive, we conclude that conflicting loyalties incompatibility is not, as a matter of law, a
bar to an individual’s simultaneously      holding the offices of county treasurer and trustee of an
independent school district located within his or her county.

          The situation is similar to that addressed in Letter Opinion 96-078. There, in holding that
the common-law doctrine of incompatibility does not as a matter of law preclude a justice of the
peace from serving as a part-time juvenile law master in the same county, this office cautioned that
 “conflicts may arise between the two positions,” because “justice courts have limited jurisdiction
 over truancy matters,” and because “[tlhere may be other circumstances in which the jurisdiction of
 a justice court brings the justice of the peace into contact with matters pertaining to juvenile law or
 a particular juvenile matter.” Tex. Att’y Gen. LO-96-078, at 3. The opinion accepted the justice’s
 assertion that “he would ask the court ‘to describe my duties in such a way that I would not have
jurisdiction over a minor charged with truancy in any justice court.“’ Id. Likewise, in the situation
you pose, if it was determined that funds were owing to Wheeler County by the Wheeler
Independent School District, the Commissioners Court, see Simmons, 182 S. W.2d at 829, would be
the proper party to initiate suit to recover those funds.

         We conclude that a county treasurer is not, as a matter of law, barred by either article XVI,
section 40, or the common-law doctrine of incompatibility from holding the office of trustee of an
independent school district within his or her county. We caution, however, that article XVI, section
65 of the Texas Constitution, may complicate such dual service in the long term. That provision
effects the automatic resignation from office of certain county and district officers, including county
treasurers, 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.” TEX. CONST.art. XVI, 0 65(b); see also Ramirez v. Flares, 505 S.W.2d 406,409 (Tex. Civ.
The Honorable Bobbye C. Hill - Page 5         (JC-0490)




App.-San Antonio 1973, writ ref d n.r.e.) (holding that county commissioner automatically resigned
under article XVI, section 65 of Texas Constitution when he applied to have his name placed on
ballot as candidate for trustee of county independent school district while more than one year of his
term as county commissioner remained).
The Honorable Bobbye C. Hill - Page 6          (JC-0490)




                                        SUMMARY

                        A county treasurer is not, as a matter of law, barred by either
               article XVI, section 40 of the Texas Constitution, or by the common-
               law doctrine of incompatibility     from simultaneously holding the
               office of trustee of an independent school district located within her
               county.




                                               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
