Can a school district police chief also serve on a city council in the same area?

TX AG Opinion GA-0688: Can a school police chief also sit on a city council?

Plain-English summary

A state senator asked whether one person can serve at the same time as the chief of police of an independent school district and as a member of the city council of a city located within the school district's boundaries, without running afoul of the common-law incompatibility doctrine.

The Attorney General sorted the doctrine into strands. The self-appointment and self-employment strands bar an official from appointing or employing himself, but neither the police chief nor the city council appoints or employs the other, so those strands did not apply. The remaining strand, conflicting-loyalties incompatibility, bars one person from holding two public offices with inconsistent or conflicting duties, as in the classic case finding the offices of school trustee and city alderman incompatible. The key limit: this strand applies only when both positions are "offices."

To decide whether the police chief job is an office, the opinion applied the test from Aldine Independent School District v. Standley: whether the person exercises a sovereign function of government largely independent of the control of others. By statute, a school district police chief is employed by the board of trustees, performs duties the board determines, and is accountable and reports to the superintendent, who in turn answers to the board. Because the chief's actions are subject to the control of the superintendent and the board, the chief is an employee, not an officer. So the police chief position is not an "office," the conflicting-loyalties doctrine does not reach it, and the doctrine does not bar the same person from also serving on the city council.

Currency note

This opinion was issued in 2009. 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.

The Education Code provisions on school district police and governance have been amended over time, and incompatibility analysis is fact-specific. Confirm current law and the specific facts before relying on this analysis.

Who this opinion affected (as of 2009)

School district police chiefs: The opinion concluded the chief is an employee subject to the control of the superintendent and board, not an officer, so the position is not an "office" for incompatibility purposes.

City councils and dual service: The opinion held the common-law incompatibility doctrine did not bar a school district police chief from also serving on the council of a city within the district's boundaries.

Common questions

Does incompatibility stop a school police chief from holding city office?
No. The opinion concluded the police chief is an employee, not an officer, so the conflicting-loyalties strand of incompatibility, which requires two offices, does not apply.

Why isn't a school police chief an "officer"?
Because, by statute, the chief is employed by the board, performs duties the board sets, and reports to the superintendent and board, so the chief does not act largely independent of others' control, the test from Aldine.

What about self-appointment incompatibility?
The opinion found it inapplicable because neither the police chief nor the city council appoints or employs the other.

Background and statutory framework

The incompatibility doctrine bars self-appointment and self-employment (Tex. Att'y Gen. Op. No. GA-0488 (2006) at 2; Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)) and bars holding two offices with conflicting duties, the conflicting-loyalties strand (Thomas v. Abernathy County Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); Tex. Att'y Gen. Op. Nos. GA-0538 (2007) at 1-2, GA-0328 (2005) at 1-2). Conflicting-loyalties incompatibility applies only where both positions are offices, and the officer-employee line turns on whether a sovereign function is exercised largely independent of others' control (Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)); disapproved on other grounds by Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690 (Tex. 1968)). A school district police chief is employed by the board, performs board-determined duties, and reports to the superintendent and board (Tex. Educ. Code Ann. §§ 11.051(a)(1), 11.151(b) (Vernon 2006 & Supp. 2008), 37.081(a) (Vernon 2006), 37.081(d), (f), 11.201(a)-(b) (Vernon Supp. 2008); Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 660 (Tex. App.-Eastland 1981, no writ)), and so is an employee, not an officer (see Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3-4).

Citations

Statutes:

• Tex. Educ. Code Ann. §§ 11.051(a)(1), 11.151(b) (Vernon 2006 & Supp. 2008)
• Tex. Educ. Code Ann. § 37.081(a) (Vernon 2006), (d), (f)
• Tex. Educ. Code Ann. § 11.201(a)-(b) (Vernon Supp. 2008)

Cases and opinions:

• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• Thomas v. Abernathy County Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)
• Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 660 (Tex. App.-Eastland 1981, no writ)
• Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690 (Tex. 1968)
• Tex. Att'y Gen. Op. Nos. GA-0488 (2006), GA-0538 (2007), GA-0393 (2006), GA-0328 (2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0688
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0688.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 6, 2009

The Honorable Jeff Wentworth
Chair, Committee on Jurisprudence
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0688

Re: Whether the police chief of an independent school district may simultaneously serve as a member of a city council of a city that is located within the geographical boundaries of the school district (RQ-0724-GA)

Dear Senator Wentworth:

You ask whether an individual may simultaneously serve as a chief of police of an independent school district and a city council member of a city located within the geographical boundaries of the school district without violating the doctrine of incompatibility.[1]

The common-law doctrine of incompatibility 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) (voiding a county contract employing county commissioner as an attorney relying on the rule that officers who have the appointing power are "disqualified for appointment to the offices to which they may appoint"). Because neither the police chief nor the city council appoints or employs the other, the self-appointment and self-employment strands of the incompatibility doctrine are not applicable here.

This common-law doctrine also 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 aldermen are incompatible because the city 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[s] performable within its limits"). Attorney general opinions have described this strand of the doctrine as conflicting loyalties incompatibility. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0538 (2007) at 1-2, GA-0328 (2005) at 1-2.

In order for conflicting loyalties incompatibility to apply, however, both positions must constitute "offices." See Thomas, 290 S.W. at 153 (concluding that the "offices of school trustee and alderman are incompatible"); see also Tex. Att'y Gen. Op. No. GA-0393 (2006) at 2-3 ("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.'"). The decisive factor which distinguishes an officer from an employee, as explained by the Texas Supreme Court in Aldine Independent School District v. Standley, 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." 280 S.W.2d 578, 583 (Tex. 1955)[2] (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)).

Relying on the Aldine rationale, this office has opined that, in general, an individual whose actions are subject to the control of others is not an "officer." See Tex. Att'y Gen. Op. No. GA-0538 (2007) at 2. In particular, this office in Attorney General Opinion GA-0393 advised that a city chief of police, who by statute served at the pleasure of the city's governing body, was "an employee rather than an officer" because "[h]is actions are subject to control and his employment may be terminated at will by the governing body." Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3-4. Accordingly, the opinion concluded that the particular individual was not prohibited by conflicting loyalties incompatibility from simultaneously serving as a member of the board of trustees of an independent school district located within the geographical limits of city. Id. at 4.

Based on the statutory provisions applicable to an independent school district, a school district police chief's actions are subject to the control of the district's board of trustees and school superintendent. The authority to govern and manage an independent school district is vested in its board of trustees. TEX. EDUC. CODE ANN. §§ 11.051(a)(1), .151(b) (Vernon 2006 & Supp. 2008). A school district police chief is employed by the board of trustees. See id. § 37.081(a) (Vernon 2006) (authorizing board of trustees to "employ security personnel" and "commission peace officers"). The police chief performs the duties for the school district as determined by the board of trustees. See id. § 37.081(d) (providing that "district peace officer shall perform administrative and law enforcement duties" as determined by the board). Moreover, the police chief is "accountable to the superintendent" and reports "to the superintendent," who in turn is employed by and reports to the board of trustees. Id. § 37.081(f); see also id. § 11.201(a)-(b) (Vernon Supp. 2008) (authorizing board of trustees to employ a school superintendent, who is "the educational leader and chief executive officer of the school district"); Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 660 (Tex. App.-Eastland 1981, no writ) (concluding that a school superintendent is an employee or agent of the board of trustees and not an officer for the purposes of nepotism statutes). Under these provisions, the police chief is subject to the control of others, the school superintendent and the board of trustees, and cannot be said to exercise authority "largely independent of the control of others." He is thus an employee rather than an "officer" under the standard established by Aldine and followed by this office. Consequently, the police chief position is not an "office" to which the conflicting loyalties incompatibility doctrine applies.

[Footnote 2: Disapproved sub nom on other grounds by Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690 (Tex. 1968).]

SUMMARY

The common-law doctrine of incompatibility does not bar an individual from simultaneously serving as the chief of police of an independent school district and as a city council member of a city located within the geographical limits of the school district.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee