                               ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                                  March 28, 2011



The Honorable Harold V. Dutton, Jr.                        Opinion No. GA-0849
Chair, Committee on Urban Affairs
Texas House of Representatives                             Re: Authority of the general manager of a water
Post Office Box 2910                                       district to serve as city manager of a home-rule
Austin, Texas 78768-2910                                   city (RQ-0913-GA)

Dear Representative Dutton:

        Your predecessor asked whether the general manager of a water district may simultaneously
serve as city manager of a home-rule city.' This dual office-holding question arises in the context
of a plan to consolidate the City of Balch Springs (the "city") with the Dallas County Water Control
and Improvement District No. 6 (the "water district")? An agreement under the Interlocal
Cooperation Act provides that the general manager of the district will also serve as city manager for
two years during the consolidation process. See Request Letter, supra note 1, at 1; Interlocal
Agreement at 1 (attached to Request Letter); see also TEX. GOV'T CODE ANN. §§ 791.001-.034                                \
(West 2004 & Supp. 2010) (Interlocal Cooperation Act). We have been asked only whether the
individual's dual service will violate the common-law doctrine of incompatibility. We express no
opinion on the proposed consolidation of the city with the water district.

        The common-law doctrine of incompatibility bars dual public service in cases of self-
appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0307 (2005)
at 3. Self-appointment incompatibility prevents one person from holding two offices, one of which
is appointed by the other. See Ehlingerv. Clark, 8 S.W.2d 666, 674 (Tex. 1928) ("[AJII officers who
have the appointing power are disqualified for appointment to the offices to which they may
appoint."). Self-employment incompatibility prevents one person from holding an office and an


         'Letter from Honorable Yvonne Davis, Chair, Committee on Urban Affairs, Texas House of Representatives
at 1 (Aug. 26, 2010) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov)
[hereinafter Request Letter]. The City of Balch Springs is a home-rule city. See CITY OF BALCH SPRINGS, TEx., CODE
OF ORDINANCES, pI. I (2008) (Charter Preamble) (available at http://www.cityofhalchsprings.comllinks.htm) (last visited
Mar. 24, 2011) [hereinafter City Charter].

         'The water district converted to a municipal utility district in 1981 but did not change its name. See SENATE
COMM. ON INTERGOVERNMENTAL RELATIONS, BIlLANALYSIS, Tex. S.B. 461, 72d Leg. (1991) ("Background"); see also
TEx. WATER CODE ANN. § 54.030(a) (West 2002) (authorizing water control and improvement districtto be converted
into a municipal utility district).
The Honorable Harold V. Dutton,Jr. - Page 2             (GA-0849)




employment that the office supervises. Tex. Att'y Gen. Op. No. GA-0766 (2010) at I. Conflicting
loyalties incompatibility "prohibits an individual from simultaneously holding two positions that
would prevent him or her from exercising independent and disinterested judgment in either or both
positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2.

        The board of the water district may employ a general manager and delegate to him "full
authority to manage and operate the affairs of the district subject only to orders of the board." TEX.
WATERCODEANN. § 49.056(a) (West 2008); see generally id. § 49.002(a) (stating that Water Code
chapter 49 applies to all general and special law districts absent conflict with other Water Code
provisions). The city manager of Balch Springs is appointed by the city council and is responsible
to the city council for administering city matters. See City Charter, supra note I, at pt. I, art. N,
§ 4.01 (describing duties of the city manager). Self-appointment incompatibility and self-
employment incompatibility do not prohibit dual service as general manager of the water district and
city manager. Neither position has authority to appoint or supervise the other.

        Conflicting loyalties incompatibility applies only where each position constitutes an "office."
Tex. Att'y Gen. Op. Nos. GA-0766 (2010) at 1-2, GA-0538 (2007) at 2, GA-0402 (2006) at 2,
GA-0393 (2006) at 3. The determining factor that distinguishes a public officer from a public
employee is "whether any sovereign function ofthe government is conferred upon the individual to
be exercised by him for the benefit of the public largely independent of the control of others." Aldine
Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (citation omitted). Prior opinions
from this office have concluded that "a person is not ordinarily an officer if his or her actions are
subject to control by a superior body, for in such instance, the person is not exercising authority
largely independent of the control of others." Tex. Att'y Gen. Op. No. GA-0766 (2010) at 2,
GA-0169 (2004) at 3.

        The board of a water district

                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 subject only to orders
                of the board.

TEX. WATER CODE ANN. § 49.056(a) (West 2008). The actions of the general manager of a water
district are subject to control by the district board. See id. Accordingly, the general manager does
not occupy an "office." Therefore, the conflicting loyalties incompatibility doctrine would not apply
in this case.

         Your predecessor also asked whether Attorney General Opinion GA-0766, pertaining to the
statutory authority by which a city manager of a general-law city was appointed by and served at the
will of the municipal government body, could be applied to a home-rule city as well. See Request
Letter, supra note 1, at 2; Tex. Att'y Gen. Op. No. GA-0766 (2010) at 2 (quoting Local Government
The Honorable Harold V. Dutton, Jr. - Page 3           (GA-0849)




Code sections 25.021 and 25.028). The city manager in that instance did not exercise power "largely
independent of the control of others" and accordingly did not hold an office. See id. at 2 (quoting
Aldine, 280 S.W.2d at 583). This analysis would apply to determine under the relevant city charter
and ordinance provisions whether the city manager of a home-rule city was an officer. See generally
Tex. Att'y Gen. Op. No. GA-0362 (2005) at 4-5 (concluding that a home-rule city may adopt a city
charter provision that is stricter than the common-law doctrine of incompatibility).

       In the City of Balch Springs, for example, the city council appoints the city manager as the
chief administrative and executive officer of the city, and he is "responsible to the City Council for
the administration of all affairs of the City." City Charter, supra note 1, at pt. 1, art. IV, § 4.01
(describing duties of the city manager). The city manager holds this position at the pleasure of
the city council, and his appointment may be terminated at any time with or without cause. See id.
§ 4.01(3). Thus, he is not an officer. The parties in this case should also consult any restrictions on
dual employment included in the city charter or ordinances.
The Honorable Harold V. Dutton, Jf, - Page 4          (GA-0849)



                                       SUMMARY

                       The general manager of a water district does not occupy an
               office because his actions are subject to control by the water district
               board. The common-law doctrine of incompatibility does not
               prohibit the general manager of a water district from serving as a city
               manager. The city manager of a home-rule city who is appointed by
               and subject to termination by the city council is not an officer within
               the common-law doctrine of incompatibility.




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee
