Can a Texas city council member also serve on a local water supply corporation's board?

TX AG Opinion GA-0597: Can a council member also sit on a water supply corporation's board?

Plain-English summary

A state senator asked the Attorney General whether a member of the Village of Wimberley City Council, and the village mayor, could serve at the same time on the board of directors of the Wimberley Water Supply Corporation. At the time, one council member was First Vice President of the corporation's board and the mayor was its President. The question raised two familiar rules that keep a person from wearing two government hats: the Texas Constitution's ban on holding more than one civil office of emolument (article XVI, section 40) and the common-law doctrine of incompatibility, which bars holding two public offices with conflicting duties.

The Attorney General concluded that neither of those rules applied, because both depend on the person holding two public offices, and a seat on the Wimberley Water Supply Corporation board is not a public office. The corporation is a private nonprofit, formed under chapter 67 of the Water Code, not a governmental body created by special legislation. The opinion contrasted it with the El Paso County Water Authority, which a special act expressly declared to be a governmental agency; a prior letter opinion holding that El Paso authority directors hold public office did not control here. Because the corporation is private and a board seat on a private nonprofit is a private office, the constitutional dual-office bar and the incompatibility doctrine did not prevent the council member or mayor from also serving on the board.

That was not the end of it. A separate statute, Local Government Code section 171.009, limits a local public official's service on private nonprofit boards. A city council member is a local public official under that section, whether elected, appointed, paid, or unpaid. Section 171.009 makes it lawful for a local public official to serve as a director of a private nonprofit corporation only if the official receives no compensation or other remuneration from the nonprofit. So the council member and the mayor could serve on the Wimberley Water Supply Corporation board only if they received no compensation or other remuneration from the corporation. If they did receive such pay, they could not serve on both the board and the city council. The opinion noted it had not been told whether the directors were in fact compensated, leaving that fact to be checked locally.

Currency note

This opinion was issued in 2008. 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.

Local Government Code chapter 171, Water Code chapter 67, and the case law on dual office holding and incompatibility cited here may have changed since 2008. Confirm the current statutes before relying on this analysis.

Who this opinion affected (as of 2008)

City council members and mayors: The opinion told them that serving on a private nonprofit water supply corporation's board was not barred by the constitutional dual-office rule or the incompatibility doctrine, but was permitted under Local Government Code section 171.009 only if they took no compensation or remuneration from the nonprofit.

Water supply corporations and other private nonprofits: The opinion confirmed that a chapter 67 water supply corporation is a private entity, so its board seats are private offices, distinguishing it from water authorities created by special act as governmental agencies.

Local officials weighing nonprofit board service generally: The opinion drew the line at compensation: an unpaid board seat on a private nonprofit was allowed, a paid one was not, for someone also holding a local public office.

Common questions

Is a city council member automatically barred from a water supply corporation board?
No. Because the corporation is a private nonprofit, the constitutional dual-office bar and the common-law incompatibility doctrine do not apply. The limit that does apply is Local Government Code section 171.009.

What does section 171.009 require?
It lets a local public official serve as a director of a private nonprofit corporation only if the official receives no compensation or other remuneration from that nonprofit. Paid board service plus a local public office is not allowed.

Why was the El Paso County Water Authority treated differently?
Because a special act specifically declared that authority a governmental agency, so its directors hold public office. The Wimberley corporation was instead formed as a private nonprofit under Water Code chapter 67, so the El Paso letter opinion did not apply.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution bars holding more than one civil office of emolument at the same time (Tex. Const. art. XVI, § 40), and the common-law incompatibility doctrine bars holding two public offices with conflicting duties or appointing oneself to a subordinate position (Thomas v. Abernathy County Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ); Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)). Both rules turn on the holding of two public offices; "civil officer" in article XVI, section 40 means "public officer" (Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)).

A water supply corporation is a private entity (N. Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 898-900 (Tex. 1991)); the Wimberley corporation was formed as a nonprofit under Water Code chapter 67, which lets three Texas citizens form such a corporation (Tex. Water Code Ann. § 67.003(a)). A board seat on a private nonprofit is a private office, so the dual-office and incompatibility rules do not reach it. By contrast, the El Paso County Water Authority was created by a special act declaring it a governmental agency (Act of Aug. 8, 1961, 57th Leg., 1st C.S., ch. 32, § 1, 1961 Tex. Gen. Laws 136, 136). The remaining limit is statutory: Local Government Code section 171.009 lets a local public official (defined in section 171.001(1) to include a member of a municipal governing body, whether elected, appointed, paid, or unpaid) serve on a private nonprofit board only if the official receives no compensation or other remuneration from the nonprofit (Tex. Loc. Gov't Code Ann. §§ 171.009, 171.001(1)). Article III, section 49-d-7(a) of the Constitution, permitting Water Development Board bond proceeds to nonprofit water supply corporations, underscores their nonprofit character.

Citations

Statutes:

• Tex. Const. art. XVI, § 40; art. III, § 49-d-7(a)
• Tex. Loc. Gov't Code Ann. §§ 171.009 (Vernon 1999); 171.001(1)
• Tex. Water Code Ann. § 67.003(a) (Vernon 2004)
• Act of Aug. 8, 1961, 57th Leg., 1st C.S., ch. 32, § 1, 1961 Tex. Gen. Laws 136, 136

Cases:

• Thomas v. Abernathy County Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)
• Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• N. Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 898-900 (Tex. 1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0597
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0597.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 18, 2008

The Honorable Jeff Wentworth
Chair, Committee on Jurisprudence
Texas State Senate
Post Office Box 12068
Austin, Texas 78711

Opinion No. GA-0597

Re: Whether a member of the Village of Wimberley City Council may serve simultaneously on the board of directors of the Wimberley Water Supply Corporation (RQ-0613-GA)

Dear Senator Wentworth:

You ask whether a member of the Village of Wimberley City Council may serve simultaneously on the board of directors of the Wimberley Water Supply Corporation.[1] You state that, at present, "[o]ne member of the Village of Wimberley City Council holds a position as a First Vice President of the Board of Directors of the Wimberley Water Supply Corporation; [and] the Village of Wimberley Mayor holds the position as President of the Board of Directors of the Wimberley Water Supply Corporation." Request Letter, supra note 1, at 2. Because your letter suggests that both the mayor and the city council member are members of the city council, we refer to them throughout this opinion as council members. See id. at 2.

Your questions may implicate the constitutional prohibition of dual office holding and the common-law doctrine of incompatibility. See id. at 1-2. Article XVI, section 40 of the Texas Constitution does not allow an individual to hold more than one civil office of emolument at the same time. See TEX. CONST. art. XVI, § 40. The common-law doctrine of incompatibility prohibits an individual from holding two public offices that perform inconsistent or conflicting duties. See Thomas v. Abernathy County Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (concluding that the public offices of school trustee and city alderman are incompatible because the city's board of aldermen have "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"); Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ). The common-law doctrine of incompatibility also prohibits an individual "from appointing himself to another public position, or from holding both an office and an employment subordinate to the office." Tex. Att'y Gen. Op. No. GA-0488 (2006) at 2; see also Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) (stating that officers who have the appointing power are "disqualified for appointment to the offices to which they may appoint").

The constitutional prohibition of dual office holding and the common-law doctrine of incompatibility pertain to the holding of two public offices. See Tex. Att'y Gen. Op. No. DM-303 (1994) at 1 (stating that a county auditor's position on a nonprofit housing corporation, a private venture, does not implicate either article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility); see also Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.) (equating the meaning of "civil officer" in article XVI, section 40 with "public officer"); Tex. Att'y Gen. Op. No. GA-0307 (2005) at 3 (stating that the common-law doctrine of incompatibility prevents one person from holding "two public offices" in certain circumstances). Thus, neither article XVI, section 40 nor the common-law doctrine of incompatibility applies if the water-supply-corporation positions at issue here are private offices.

The Wimberley Water Supply Corporation is a private entity. See N. Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 898-900 (Tex. 1991) (describing how a water supply corporation operates and concluding that it is not a public charity); cf. TEX. CONST. art. III, § 49-d-7(a) (permitting the Texas Water Development Board to provide bond proceeds to "various political subdivisions and bodies politic and corporate of the state and to nonprofit water supply corporations"); Tex. Att'y Gen. Op. No. JM-852 (1988) at 4 (distinguishing between business entities and public institutions established by legislative action and governed by public officers exercising delegated legislative authority); Tex. Att'y Gen. LO-95-014, at 3-4 (defining "private corporation" and distinguishing it from a state agency). It was established as a nonprofit water supply corporation under Water Code chapter 67.[2] See Wimberley Water Supply Corporation By-Laws art. VIII (attached to Akers Letter supra note 2, at 7); cf. Tex. Att'y Gen. Op. No. JC-0484 (2002) at 6 ("A nonprofit corporation is a private entity and is, therefore, distinguishable from a public entity."). And a position on the board of a nonprofit corporation is a private office. See Tex. Att'y Gen. Op. No. DM-194 (1992) at 3. Because members of the Wimberley Water Supply Corporation board of directors do not hold public offices,[3] neither the constitutional prohibition against dual office holding nor the common-law doctrine of incompatibility precludes them from simultaneously holding positions on the Village of Wimberley City Council.

Although the constitutional prohibition against dual office holding and the common-law doctrine of incompatibility do not apply, Local Government Code section 171.009 limits the authority of a "local public official" to serve on the board of a private nonprofit corporation. TEX. LOC. GOV'T CODE ANN. § 171.009 (Vernon 1999). A local public official for purposes of section 171.009 includes a member of a municipal governing body, "whether elected, appointed, paid, or unpaid." Id. § 171.001(1). Under section 171.009, it is "lawful for a local public official to serve as a member of the board of directors of private, nonprofit corporations when such officials receive no compensation or other remuneration from the nonprofit corporation or other nonprofit entity." Id. § 171.009. Thus, a member of the Village of Wimberley City Council may serve on the board of directors of the Wimberley Water Supply Corporation only if the city council member receives "no compensation or other remuneration" from the water supply corporation. See Tex. Att'y Gen. Op. Nos. GA-0084 (2003) at 7; DM-194 (1992) at 3-4. Conversely, a member of the water-supply-corporation board of directors who receives "compensation or other remuneration" from the water supply corporation may not serve on the city council.

We have not been informed as to whether the water-supply-corporation board members receive compensation or other remuneration for their service on the board. If they do, they may not serve simultaneously on the Village of Wimberley City Council.

SUMMARY

Under Local Government Code section 171.009, the mayor of the Village of Wimberley and a member of the Village of Wimberley City Council may serve simultaneously on the Wimberley Water Supply Corporation's board of directors only if they receive no compensation or other remuneration from the water supply corporation.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas (Aug. 14, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Letter from Honorable Sally Caldwell, City of Woodcreek City Council, to Opinion Committee, Office of the Attorney General, at 4 (Sept. 15, 2007) [hereinafter Caldwell Brief]; Letter from Patty L. Akers, Village of Wimberley City Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Sept. 14, 2007) [hereinafter Akers Letter]; Brief of Wimberley Water Supply Corporation, at 1, attached to Letter from Michael D. Stevens, Stevens & Malone, L.L.P., to Honorable Greg Abbott, Attorney General of Texas (Sept. 5, 2007); see also TEX. WATER CODE ANN. § 67.003(a) (Vernon 2004) (authorizing three Texas citizens to form a water supply corporation).

[3] In support of a statement that the directors of the Wimberley Water Supply Corporation hold public offices, a brief we have received cites Attorney General Letter Opinion 92-68, which states that a director of the El Paso County Water Authority holds a public office and therefore cannot simultaneously serve on the Horizon City Town Council. See Caldwell Brief, supra note 2, at 1-2; Tex. Att'y Gen. LO-92-68, at 1-2. Unlike the Wimberley Water Supply Corporation, which was established in accordance with Water Code chapter 67, the El Paso County Water Authority was created by a special act that specifically declared it a governmental agency. See Act of Aug. 8, 1961, 57th Leg., 1st C.S., ch. 32, § 1, 1961 Tex. Gen. Laws 136, 136. Consequently, Letter Opinion 92-68 is inapposite here.