                               ATTORNEY GENERAL OF TEXAS
                                            GREG       ABBOTT




                                                 May 27,2003



The Honorable Ed C. Jones                                Opinion No. GA-0077
Angelina County Attorney
P.O. Box 1845                                            Re: Whether a member of the board of directors
L&kin, Texas 75902-l 845                                 of a water control and improvement district may
                                                         simultaneously    serve as an employee of that
                                                         district (RQ-0012-GA)

Dear Mr. Jones:

         You ask whether a member of the board of directors of a water control and improvement
district may simultaneously serve as an employee of that district.

          You indicate that the Central Water Control and Improvement District (the “District”), which
is located entirely within Angelina County, has “operated since 1963 as a water control and
improvement district” under chapter 49 of the Water Code.’ A district organized under chapter 49
is “governed by its board, the number of which is otherwise provided by law.” TEX. WATER CODE
ANN. 9 49.05 1 (Vernon 2000). The board “may employ or contract with a person to perform such
services as general manager for the district as the board may from time to time specify. The board
may delegate to the general manager full authority to manage and operate the affairs of the district
. . . .” Id 8 49.056(a). “The board may delegate to the general manager the authority to employ all
persons necessary for the proper handling of the business and operation of the district and
to determine the compensation to be paid all employees other than the general manager.” Id
§ 49.056(b). Section 49.056(c) provides that, except as prohibited by section 49.052, which governs
conflict of interest by directors, “a director may be employed as general manager of the district,”
although “the compensation of a general manager who also serves as a director shall be established
by the other directors.” Id. 8 49.056(c).

        Youstate that one member of the board of directors “has for some time been paid as a part-
time employee of the District, sometimes working up to (40) hours a week.” Request Letter, supra
note 1, at 1. Presumably, this individual is not employed as general manager of the District, and thus
his employment is not specifically authorized by chapter 49 of the Water Code. You ask whether




         ‘Letter from Honorable Ed. C. Jones, Angelina County Attorney, to Honorable Greg Abbott, Texas Attorney
General at 1 (Jan. 13, 2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable   Ed C. Jones - Page 2            (GA-0077)




that individual may serve at the same time in both capacities - as a member of the District’s board
of directors and as a part-time employee of the District. See id. at l-2.

          The common-law doctrine of incompatibility bars an individual from simultaneously holding
two positions when “the performance of the duties of one interferes with the performance of those
of the other.” State ex rel. Hill v. Pirtle, 887 S.W.2d 92 1,930 (Tex. Crim. App. 1994). The doctrine
of incompatibility   involves three aspects: self-appointment,      self-employment,  and conflicting
loyalties. See Tex. Att’y Gen. Op. Nos. GA-0015 (2003), JC-0199 (2000), JM-1266 (1990). The
first is derived from the Texas Supreme Court’s decision in Ehlinger v. Clark, 8 S.W.2d 666 (Tex.
1928), in which the court declared:

                It is 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.

Id. at 674.

         “‘Self-employment’ incompatibility is a corollary to the ‘self-appointment’ doctrine.” Tex.
Att’y Gen. Op. No. GA-0015 (2003) at 1. This aspect of incompatibility was first applied in Texas
in Attorney General Letter Advisory 114 (1975) which considered whether a public school teacher
was eligible to serve as a member of the board of trustees of the district in which she was employed
as a teacher. On the basis of Ehlinger and out-of-state authority, the opinion concluded that the
“positions of public school teacher for an independent school district and trustee for the same district
are legally incompatible and cannot be simultaneously occupied by the same person.” Tex. :Att’y
Gen. LA-114 (1975).

        Since 1975, this office has periodically       addressed the issue of self-employment
incompatibility.  A municipal employee may not, for example, serve as commissioner for that city.
See Tex. Att’y Gen. LO-97-034. A city manager may not serve as police chief if, as city manager,
he or she has supervisory authority over the chief. See Tex. Att’y Gen. LO-89-002.         A chief
appraiser may not also be a member of the appraisal district board. See Tex. Att’y Gen. LO-90-045.
And the chair of the Public Utility Commission may not be appointed as acting executive director,
because a statute makes the executive director the commission’s employee. See Tex. Att’y Gen.
LO-89-057.

         Attorney General Opinion JC-0371 (2001) considered whether a school district trustee was
permitted “‘to serve as a volunteer, unpaid, part-time history teacher [in his district] . . . for one
period a day. . . for a single semester. “’ Tex. Att’y Gen. Op. No. JC-0371 (2001) at 1. In holding
that the trustee was prohibited from doing so by self-employment       incompatibility,  the opinion
indicated that the fundamental test under this aspect of the doctrine was one of supervision. Id.
at 3. In the situation you pose, the board member, under the terms of the statute, has supervisory
authority over the general manager of the District, who in turn supervises the board member as a
The Honorable   Ed C. Jones - Page 3           (GA-0077)




part-time employee. See Request Letter, supra note 1, at 1. Although the self-employment aspect
of the common-law doctrine of incompatibility would clearly prohibit a member of the District’s
board of directors from serving as an employee of the District, other than its general manager, it
might be argued that the authority of a board member to serve as general manager requires that a
board member also be permitted to be employed by the District in some other capacity.

         Section 49.056(c) of the Water Code, which authorizes a member of the board of directors
of a water control and improvement district to serve as its general manager, was first enacted in
1995, as part of the adoption of chapter 49 of the Water Code. See Act of May 25’1995’74th Leg.,
R.S., ch. 715, 5 2, 1995 Tex. Gen. Laws 3755’3758. The bill that adopted this provision declares
that “[tlhe Code Construction Act (Chapter 3 11, Government Code) applies to the construction of
each provision in this code, except as otherwise expressly provided by this code.” Id. 5 1. Section
3 11.023 provides that, “[i]n construing a statute, whether or not the statute is considered ambiguous
on its face, a court may consider,” inter alia, “common law or former statutory provisions.” TEX.
GOV’T CODEANN. 5 3 11.023(4) (Vernon 1998).

         In enacting section 49.056(c) of the Water Code, the legislature specifically authorized a
District board member to serve as the District’s general manager. The statute is silent as to whether
a board member may serve as a District employee in any other capacity. Section 49.056(c) is to be
construed in harmony with chapter 3 11 of the Government Code, the Code Construction Act, which
permits us to consider whatever common law may bear on the question. Id. In light of these
circumstances,    we must conclude that the legislature did not intend to repeal the common-law
doctrine of incompatibility with regard to any District employee other than that of general manager.
As a result, a member of the Board of Directors of the Central Water Control and Improvement
District of Angelina County is barred from serving as an employee of the District in any capacity
other than that of general manager.
The Honorable Ed C. Jones - Page 4            (GA-0077)




                                       SUMMARY

                       A member of the Board of Directors of the Central Water
               Control and Improvement District of Angelina County is prohibited
               from serving as an employee of the District in any capacity other than
               that of general manager.

                                              Very truly yours,




                                                          eneral 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
