Can a Texas city police chief also serve on the school board of a district inside the city, or is that an incompatible dual office?

TX AG Opinion GA-0393: Can a city police chief also serve as a school district trustee?

Plain-English summary

A state senator asked whether the chief of police of Hale Center, a Type A general-law city, could also serve as a trustee of the Hale Center Independent School District, whose boundaries overlap the city. The chief had been elected to the school board but had not yet accepted that seat. The Attorney General concluded he could hold both positions.

Two legal rules could have stood in the way, and neither did. The first is the Texas Constitution's prohibition (article XVI, section 40) on holding more than one civil "office of emolument," meaning a paid office. School board trustees serve without compensation, so a trustee's seat is not an office of emolument, and the constitutional ban simply did not reach the question. The second is the common-law doctrine of incompatibility, specifically its conflicting-loyalties branch, which the Texas courts first recognized in the 1927 Thomas case (holding the offices of school trustee and city alderman incompatible). That branch matters only when both positions a person holds are "offices."

So the case turned on whether a municipal chief of police holds an office. Under the Texas Supreme Court's test in Aldine Independent School District v. Standley, a person is a public officer only when a sovereign function of government is given to him to exercise largely independent of others' control. The Hale Center chief did not meet that test: he was not made an officer under the Local Government Code's "other municipal officers" provision, he served at the pleasure of the board of aldermen, and his actions were subject to their control and his job could be ended at will. A line of cases and prior AG opinions treats such at-will, supervised positions (an appraisal-district chief appraiser, an at-will city attorney, a chief probation officer, an ordinary municipal police officer) as employees, not officers. Because the chief was an employee, the conflicting-loyalties doctrine did not apply, and he could serve as a school trustee at the same time. The opinion took care to distinguish GA-0328, where a county sheriff was held to be a public officer (an elected official answerable only to the voters) and therefore could not simultaneously serve as a school trustee.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Whether a particular police chief is an "officer" depends on the structure of the specific city's government and on Local Government Code and Education Code provisions that may have changed since 2006. Anyone facing this question today should confirm the current statutes and check for later AG opinions before relying on this analysis, especially because the answer hinges on whether the chief serves at-will and under the governing body's control.

Who this opinion affected (as of 2006)

At-will municipal police chiefs: The opinion told them that, where they serve at the pleasure of the governing body and are not made statutory officers, they are employees rather than officers and are not barred from also serving as school district trustees.

School districts and general-law cities: It confirmed that seating an at-will police chief on a school board did not, by itself, create an unconstitutional dual office or a conflicting-loyalties problem.

Sheriffs and other elected law enforcement officials: By distinguishing GA-0328, the opinion reinforced that an elected sheriff is a public officer and could not simultaneously hold a school trustee position, a different result than for an at-will chief.

Common questions

Why doesn't the Constitution's dual-office ban apply?
Because article XVI, section 40 bars holding two civil offices "of emolument," meaning paid offices, and school district trustees serve without compensation. A trustee's seat is not an office of emolument.

What makes someone an "officer" rather than an "employee"?
Under the Aldine test, a person is an officer only if a sovereign function of government is given to him to exercise largely independent of others' control. Someone who serves at-will and under a board's direction is an employee.

Why was a police chief treated differently from a sheriff?
A sheriff is elected and answers only to the voters, so he is a public officer. The Hale Center chief served at the pleasure of the aldermen and could be removed at will, so he was an employee, not an officer.

Does this mean every police chief can serve on a school board?
Not automatically. The answer depends on the city's structure and whether the chief is an at-will employee under the governing body's control. A chief made a statutory officer with independent authority could reach a different result.

Background and statutory framework

The Texas Constitution bars holding more than one civil office of emolument (Tex. Const. art. XVI, § 40), but a school board trustee serves without compensation (Tex. Educ. Code Ann. § 11.061(d) (Vernon 1996)), so that ban was not implicated. Hale Center is a Type A general-law municipality governed by chapter 22 of the Local Government Code, with a governing body of a mayor and five aldermen and a mayor as chief executive officer; the chief of police was not designated an officer under the "other municipal officers" provision and served at the governing body's pleasure (Tex. Loc. Gov't Code Ann. §§ 22.001, 22.031(b), 22.042(a), 22.071 (Vernon 1999)).

The conflicting-loyalties branch of the common-law incompatibility doctrine applies only when both positions are offices (Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)). Whether a position is an office turns on the Aldine test: a sovereign function exercised largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)). Courts have treated supervised, at-will roles as employments rather than offices (Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd) (county road engineer); Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.) (chief probation officer); Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App.-Corpus Christi 1976, no writ) (public school teacher)).

Citations

Statutes and constitutional provisions:

• Tex. Const. art. XVI, § 40
• Tex. Loc. Gov't Code Ann. §§ 22.001, 22.031(b), 22.042(a), 22.071 (Vernon 1999)
• Tex. Educ. Code Ann. § 11.061(d) (Vernon 1996)

Cases:

• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)
• Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App.-Corpus Christi 1976, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0393
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0393.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 11, 2006

The Honorable Robert Duncan
Chair, Committee on State Affairs
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0393

Re: Whether a municipal chief of police may simultaneously serve as a trustee of an independent school district located within the geographical boundaries of the municipality (RQ-0368-GA)

Dear Senator Duncan:

You ask whether a municipal chief of police may simultaneously serve as a trustee of an independent school district located within the geographical boundaries of the municipality.[1]

Your question relates specifically to the Chief of Police of Hale Center, who was elected to membership on the Board of Trustees of the Hale Center Independent School District on May 7, 2005. The individual in question has not yet accepted his office as a member of the board. See Request Letter, supra note 1, at 1. A brief received from the attorney for the city indicates that the City of Hale Center is a Type A general-law municipality.[2] Such a municipality is governed by chapter 22 of the Local Government Code. TEX. LOC. GOV'T CODE ANN. § 22.001 (Vernon 1999). The governing body of a Type A general-law municipality "consists of a mayor and five aldermen." Id. § 22.031(b). "The mayor is the chief executive officer of the municipality" and is required to "perform the duties and exercise the powers prescribed by the governing body of the municipality." Id. § 22.042(a). You inform us that the chief of police is not an officer under section 22.071 of the Local Government Code, which authorizes a municipal governing body to establish additional municipal offices.[3] Request Letter, supra note 1, at 4. A brief received from the City Attorney indicates that the chief of police "serves at the pleasure of the governing body." See Hurd Brief, supra note 2.

Article XVI, section 40 of the Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40. A member of the board of trustees of an independent school district serves without compensation. TEX. EDUC. CODE ANN. § 11.061(d) (Vernon 1996). Consequently, a school board trustee does not hold an "office of emolument," and article XVI, section 40 is not relevant to your question.

We must also consider the common-law doctrine of incompatibility, which has three aspects: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0328 (2005) at 1. The first two are not applicable here, because neither the chief of police nor the school board of trustees appoint or employ the other. It is the third aspect of incompatibility - conflicting loyalties - that is implicated by your inquiry. This doctrine was first promulgated by a Texas court in the 1927 case of Thomas v. Abernathy County Line Independent School District, wherein 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.

Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted).

The clear message of Thomas is that, in order for conflicting loyalties incompatibility to be applicable to a particular situation, each position must constitute an "office." See id. Accord Tex. Att'y Gen. Op. Nos. JC-0054 (1999) at 2, JM-1266 (1990) at 4; Tex. Att'y Gen. LO-96-148, at 2, LO-95-029, at 3, LO-93-027, at 2. In Aldine Independent School District v. Standley, the Texas Supreme Court held that

the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the 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) (emphasis added). Aldine held that an assessor-collector of taxes appointed by a school district board of trustees was not a "public officer," but rather a mere agent or employee of the board. Id. at 582-83. Although the assessor-collector exercised a "sovereign function of the government," he did so under the board's authority and direction. Id. Likewise, in Dunbar v. Brazoria County, the case relied upon in Aldine, the court held that a county road engineer was an employee rather than an officer. Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston 1949, writ ref'd). See also Harris County v. Schoenbacher, 594 S.W.2d 106, 111 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.) (chief probation officer, while exercising sovereign functions, does so under aegis and authority of juvenile board, and thus does not act "largely independent of the control of" others); Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no writ) (public school teacher is "employee" rather than "officer").

Similarly, this office has indicated that an individual is ordinarily not a "public officer" if his actions are subject to control and his employment may be terminated at will by a superior body, because in such instances he cannot be said to exercise his authority "largely independent of the control of others." Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2. See also Tex. Att'y Gen. Op. Nos. JC-0054 (1999) (at-will city attorney is not an "officer"), JM-499 (1986) at 2 (chief appraiser is not an officer because his responsibilities are subject to review and control by the appraisal review board, and he serves at board's pleasure); Tex. Att'y Gen. LO-96-148 (assistant district attorney is not an "officer"). In another opinion, the attorney general said that "under ordinary circumstances, a municipal police officer performs his duties under the direction and control of others, and thus, does not hold an 'office.'" Tex. Att'y Gen. LO-93-027, at 2. Accord Tex. Att'y Gen. LO-95-048, at 2 (municipal police officer does not hold "office of emolument").[4]

In the situation you pose, the mayor is the chief executive officer of the city and the governing body "consists of a mayor and five aldermen." See TEX. LOC. GOV'T CODE ANN. §§ 22.042(a), .031(b) (Vernon 1999). As we have noted, the chief of police is not an officer under section 22.071 of the Local Government Code and, moreover, serves at the pleasure of the governing body. See Request Letter, supra note 1, at 4. Under the standard prescribed by Aldine and its progeny, as well as numerous attorney general opinions, the chief of police is an employee rather than an officer. His actions are subject to control and his employment may be terminated at will by the governing body, i.e., the board of aldermen. In such circumstances, he cannot be said to exercise his authority "largely independent of the control of others." Because he is an employee rather than an officer, he is not prohibited by the conflicting loyalties aspect of the common-law doctrine of incompatibility from simultaneously serving as a member of the board of trustees of an independent school district whose geographical jurisdiction overlaps with that of the city he serves as police officer.[5]

Because your second and third questions are premised upon a negative answer to your first question, we need not address them.

SUMMARY

The Chief of Police of Hale Center, who serves at the pleasure of the Hale Center Board of Aldermen, is not prohibited by article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as a member of the Board of Trustees of the Hale Center Independent School District.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Robert Duncan, Chair, Senate Committee on State Affairs, to Honorable Greg Abbott, Attorney General of Texas (July 28, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. Brief from Todd M. Hurd, Assistant City Attorney, City of Hale Center, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney General of Texas (Sept. 22, 2005) (on file with Opinion Committee) [hereinafter Hurd Brief].

3. Section 22.071 of the Local Government Code addresses "Other Municipal Officers" and provides: (a) In addition to the members of the governing body of the municipality, the other officers of the municipality are the secretary, treasurer, assessor and collector, municipal attorney, marshal, municipal engineer, and any other officers or agents authorized by the governing body. (b) The governing body by ordinance shall provide for the election or appointment of the officers provided by this section. (c) The governing body may confer on other municipal officers the powers and duties of an officer provided for by this section. TEX. LOC. GOV'T CODE ANN. § 22.071 (Vernon 1999).

4. Attorney General Opinion JM-422 assumes, without specifically so finding, that an appointed municipal chief of police of a general-law city holds an office. See Tex. Att'y Gen. Op. No. JM-422 (1986) at 2. That conclusion is no longer valid in light of Attorney General Opinion DM-212, which concluded that a city police officer does not as a matter of law hold an office. See Tex. Att'y Gen. Op. No. DM-212 (1993) at 5.

5. We note that the facts presented here are distinguishable from those of Attorney General Opinion GA-0328. There, we said that a county sheriff may not simultaneously serve as a trustee of an independent school district located within an unincorporated area of the county in which the sheriff serves as the primary law enforcement official. See Tex. Att'y Gen. Op. No. GA-0328 (2005). A sheriff is an elected official who answers only to the voters. He is thus a "public officer" for purposes of article XVI, section 40 of the Texas Constitution and the conflicting loyalties aspect of the common-law doctrine of incompatibility. Id. at 1.