Can a Texas hospital district board member also hold another county office?

Plain-English summary

State Representative Rafael Anchia, chair of the House Committee on International Trade and Intergovernmental Affairs, asked the Attorney General whether a member of the board of directors of the Maverick County Hospital District could hold other county offices at the same time, either under the Texas Constitution or under the common-law doctrine of incompatibility. The question came up because one board member had served as a municipal housing authority commissioner, and another was serving out a vacancy term as county treasurer.

The AG worked through two separate rules. The first is the constitutional ban on dual office-holding in article XVI, section 40(a), which says no person may "hold or exercise at the same time, more than one civil office of emolument." An "emolument" means a pecuniary profit, gain, or advantage, and it does not include reimbursement of legitimate expenses. Because a hospital district board seat is unpaid by statute (board members get expense reimbursement only), the AG concluded the seat is not an "office of emolument," so the constitutional bar simply did not apply. A board member could hold another office without running into article XVI, section 40(a).

The second rule is the common-law doctrine of incompatibility, which blocks one person from holding two offices in cases of self-appointment, self-employment, or conflicting loyalties. Only the conflicting-loyalties strand was at issue. For it to apply at all, each position has to be a public "office," and the AG confirmed that hospital district board members are public officers because the district exercises a sovereign government function largely free of outside control.

On the housing authority question, the AG could not give a yes-or-no answer. A housing authority commissioner is also a public office, so the conflicting-loyalties test applied. The hospital district provides medical care to needy residents and a housing authority provides safe housing for low-income people, so their core duties do not overlap. But the two bodies are allowed to contract with each other, and the AG had previously held that when two governmental bodies can contract with one another, conflicting-loyalties incompatibility may exist depending on the specific facts. Whether a particular person could serve both without his loyalties interfering is a factual inquiry, and the AG does not resolve fact questions in the opinion process. So the office declined to decide that one as a matter of law.

On the county treasurer question, the AG was willing to predict an answer. A county treasurer is also a public office, but the AG had earlier held that the treasurer's non-exclusive authority to pursue debts owed to the county (authority the commissioners court shares) does not amount to a conflicting loyalty. Finding no other meaningful overlap between the two sets of duties, the AG concluded that a court would likely hold the incompatibility doctrine does not bar a board member from also serving as county treasurer.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Representative Anchia and the Maverick County Hospital District (as the opinion described it): The opinion concluded that the constitutional dual-office ban in article XVI, section 40(a) did not reach an unpaid board seat, so it did not prohibit a board member from serving the county in another capacity. It declined to decide the housing-authority question because that turned on facts the opinion process cannot resolve, and it concluded a court would likely allow a board member to also serve as county treasurer.

Hospital district board members (as the opinion described it): The opinion treated the board seat as a public office but not an office of emolument, because the position is unpaid. It described the constitutional bar as inapplicable on that basis and left any conflicting-loyalties question to depend on the second office at issue and the facts.

County treasurers and would-be dual office-holders (as the opinion described it): The opinion described the treasurer's debt-collection authority as non-exclusive and shared with the commissioners court, so it treated that authority as not rising to a conflicting loyalty, and it predicted a court would not find incompatibility between the treasurer's office and a hospital district board seat.

Common questions

Does the Texas Constitution stop a hospital district board member from holding another office?
The AG concluded it did not in this case. Article XVI, section 40(a) only bars holding more than one "civil office of emolument," and because the board seat is unpaid, the AG treated it as not an office of emolument, so the constitutional bar did not apply.

What is the common-law doctrine of incompatibility?
The AG explained that it blocks one person from holding two offices in cases of self-appointment, self-employment, or conflicting loyalties. Here only the conflicting-loyalties strand was in play, which asks whether holding both offices is detrimental to the public interest or whether the duties of one interfere with the duties of the other.

Can the same person be a hospital district board member and a housing authority commissioner?
The AG did not answer that directly. Both are public offices, and because the hospital district and housing authorities can contract with each other, the AG said conflicting-loyalties incompatibility could exist depending on the facts, which the opinion process cannot resolve.

Can a hospital district board member also serve as county treasurer?
The AG concluded a court would likely say yes. The treasurer's authority to pursue debts owed to the county is shared with the commissioners court, so the AG treated it as non-exclusive and not a conflicting loyalty, and it found no other overlap between the two offices.

Does an unpaid public position count as an "office" for incompatibility purposes?
Yes. The AG explained that a position is a public office when a sovereign government function is conferred on it to be exercised for the public largely free of outside control, and it concluded hospital district board members meet that test even though the seat is unpaid.

Background and statutory framework

The constitutional dual-office bar appears in article XVI, section 40(a), which prohibits holding "more than one civil office of emolument" (Tex. Const. art. XVI, § 40(a)). The AG defined "emolument" as a pecuniary profit, gain, or advantage (State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)) and noted it excludes legitimate expense reimbursement (Tex. Att'y Gen. Op. No. GA-1036 (2014)). Because board members may not be compensated and may only be reimbursed for expenses (Tex. Spec. Dist. Code Ann. § 1118.056 (West 2013)), the AG concluded the seat is not an office of emolument.

For the common-law doctrine, the AG drew on prior opinions describing its three strands and the conflicting-loyalties test (Tex. Att'y Gen. Op. Nos. GA-0849 (2011), GA-0786 (2010), GA-0840 (2011)) and the rule that the doctrine relies on a position being an "office," tracing the conflicting-loyalties standard to Thomas v. Abernathy Cnty. Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). The AG applied the public-officer test from Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) and pointed to the statutes creating the district and vesting management in the board (Tex. Const. art. IX, § 9; Tex. Spec. Dist. Code Ann. §§ 1118.002, 1118.003, 1118.051(a)-(b), 1118.104 (West 2013)).

On the housing authority question, the AG noted that a housing authority commissioner is a public office (Tex. Att'y Gen. Op. No. JM-874 (1988), citing Hous. Auth. of Harlingen v. State ex. rel. Velasquez, 539 S.W.2d 911, 915 (Tex. Civ. App. Corpus Christi 1976, writ ref'd n.r.e.)). It compared the district's medical-care mission (Tex. Spec. Dist. Code Ann. § 1118.101(a) (West 2013)) with a housing authority's low-income housing mission (Tex. Loc. Gov't Code Ann. § 392.003(5) (West 2005)), observed that the two are authorized to contract with each other (id. § 392.052(c); Tex. Spec. Dist. Code Ann. § 1118.101(b) (West 2013)), and held under GA-0786 that such contracting power creates a potential conflicting-loyalties issue whose resolution is a factual inquiry outside the opinion process (Tex. Att'y Gen. Op. No. GA-1020 (2013)).

On the county treasurer question, the AG identified the treasurer as a public office (Tex. Att'y Gen. Op. No. JC-0490 (2002)), described the treasurer's debt-collection duties (Tex. Loc. Gov't Code Ann. § 113.902(a) (West 2008)), noted the commissioners court shares the authority to initiate collection suits (Simmons v. Ratliff, 182 S.W.2d 827, 829 (Tex. Civ. App. Amarillo 1944, writ ref'd w.o.m.)), and concluded that this non-exclusive authority does not create a conflicting loyalty (JC-0490). A footnote addressed whether a treasurer serving out a two-year vacancy is an "officer," concluding the position is continuing rather than intermittent (Knox v. Johnson, 141 S.W.2d 698, 700 (Tex. Civ. App.-Austin 1940, writ ref'd)). Another footnote distinguished hospital districts created under chapter 282 of the Health and Safety Code, where the county treasurer serves as district treasurer (Tex. Health & Safety Code Ann. § 282.062(a) (West 2010)), from this special-law district.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40(a) (one civil office of emolument)
• Tex. Const. art. IX, § 9 (authority for creation of the hospital district)
• Tex. Spec. Dist. Code Ann. § 1118.056 (West 2013) (no compensation for board members; expense reimbursement only)
• Tex. Spec. Dist. Code Ann. § 1118.002 (West 2013) (creation of the District)
• Tex. Spec. Dist. Code Ann. § 1118.003 (public entity performing an essential public function)
• Tex. Spec. Dist. Code Ann. § 1118.051(a)-(b) (board members elected to four-year terms)
• Tex. Spec. Dist. Code Ann. § 1118.104 (management and control vested in the board)
• Tex. Spec. Dist. Code Ann. § 1118.101(a) (West 2013) (hospital and medical care for needy residents)
• Tex. Spec. Dist. Code Ann. § 1118.101(b) (West 2013) (authority to undertake necessary measures)
• Tex. Loc. Gov't Code Ann. § 392.003(5) (West 2005) (housing authority purpose)
• Tex. Loc. Gov't Code Ann. § 392.052(c) (housing authority contracts with public entities)
• Tex. Loc. Gov't Code Ann. § 113.902(a) (West 2008) (county treasurer debt-collection duties)
• Tex. Health & Safety Code Ann. § 282.062(a) (West 2010) (treasurer as district treasurer under chapter 282)

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
• Thomas v. Abernathy Cnty. 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, 583 (Tex. 1955)
• Hous. Auth. of Harlingen v. State ex. rel. Velasquez, 539 S.W.2d 911, 915 (Tex. Civ. App. Corpus Christi 1976, writ ref'd n.r.e.)
• Simmons v. Ratliff, 182 S.W.2d 827, 829 (Tex. Civ. App. Amarillo 1944, writ ref'd w.o.m.)
• Knox v. Johnson, 141 S.W.2d 698, 700 (Tex. Civ. App.-Austin 1940, writ ref'd)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-1036 (2014)
• Tex. Att'y Gen. Op. No. GA-0849 (2011)
• Tex. Att'y Gen. Op. No. GA-0786 (2010)
• Tex. Att'y Gen. Op. No. GA-0840 (2011)
• Tex. Att'y Gen. Op. No. JM-874 (1988)
• Tex. Att'y Gen. Op. No. GA-1020 (2013)
• Tex. Att'y Gen. Op. No. JC-0490 (2002)
• Tex. Att'y Gen. Op. No. JM-847 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1075
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1075.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 8, 2014

The Honorable Rafael Anchia Opinion No. GA-1075
Chair, Committee on International Trade and
Intergovernmental Affairs Re: Simultaneous service in multiple official
Texas House of Representatives capacities of board members of the Maverick
Post Office Box 2910 County Hospital District (RQ-1186-GA)
Austin, Texas 78768-2910

Dear Representative Anchia:

You ask whether members of the board of directors ("Board") for the Maverick County Hospital District ("District") are prohibited from simultaneously serving Maverick County in other official capacities by the Texas Constitution or the common-law doctrine of incompatibility.[1]

Article XVI, section 40(a) 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). An "emolument" for purposes of article XVI, section 40, is "a pecuniary profit, gain, or advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). The term "emolument" does not include the legitimate reimbursement of expenses. See Tex. Att'y Gen. Op. No. GA-1036 (2014) at 2. A Board position is unpaid. TEX. SPEC. DIST. CODE ANN. § 1118.056 (West 2013) (prohibiting compensation for Board members but allowing reimbursement for necessary expenses). Because the position is not one "of emolument," article XVI, section 40(a) of the Constitution does not bar a Board member from serving in another official capacity.

Apart from the Texas Constitution, the common-law doctrine of incompatibility prohibits dual public service in cases of self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0849 (2011) at 1. The conflicting-loyalties prong, about which you ask, prohibits the simultaneous holding of two positions that would prevent a person "from exercising independent and disinterested judgment in either or both positions."[2] Tex. Att'y Gen. Op. No. GA-0786 (2010) at 2 (relying on Thomas v. Abernathy Cnty. Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)). As a threshold matter, in order for the conflicting-loyalties prong of the common-law doctrine of incompatibility to apply, each position must constitute an "office." Tex. Att'y Gen. Op. No. GA-0840 (2011) at 2. A public officer is one to whom "'any sovereign function of the government is conferred ... 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). The District "is created under the authority of Section 9, Article IX, Texas Constitution." TEX. SPEC. DIST. CODE ANN. § 1118.002 (West 2013). The District "is a public entity performing an essential public function." Id. § 1118.003. Board members are "elected by district voters" and serve a four-year term. Id. § 1118.051(a)-(b). "The management and control of the district is vested in the board," which "has full power to manage and control the district." Id. § 1118.104. Thus, members of the Board are "public officers" for common-law incompatibility purposes.

Your first question involves a Board member serving as a commissioner of a municipal housing authority.[3] Request Letter at 1. We have previously concluded that a housing authority commissioner holds public office. See Tex. Att'y Gen. Op. No. JM-874 (1988) at 1-2 (citing Hous. Auth. of Harlingen v. State ex. rel. Velasquez, 539 S.W.2d 911, 915 (Tex. Civ. App. Corpus Christi 1976, writ ref'd n.r.e.)). Because both positions about which you ask are public offices, the common-law conflicting-loyalties analysis is appropriate.

In determining whether there are conflicting loyalties between two offices, "'the crucial question'" is whether holding both offices is "'detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other.'" Tex. Att'y Gen. Op. No. GA-0786 (2010) at 2 (quoting State ex rel. Hill, 887 S.W.2d at 930). The District's main role is "to provide hospital and medical care to the district's needy residents." TEX. SPEC. DIST. CODE ANN. § 1118.101(a) (West 2013). A municipal housing authority exists to clear out unsanitary or unsafe housing and "provid[e] ... safe and sanitary housing for persons of low income." TEX. LOC. GOV'T CODE ANN. § 392.003(5) (West 2005). While the scope of authority of the two entities does not overlap, the District is authorized to contract with housing authorities and vice versa. See id. § 392.052(c) (authorizing a housing authority to contract with a public entity to provide services for the occupants of a housing project); TEX. SPEC. DIST. CODE ANN. § 1118.101(b) (West 2013) (requiring the District to "undertake any measure" deemed "necessary to provide hospital and medical care for the district's needy inhabitants," including, presumably, contracting with a housing authority). This office has recently concluded that where two governmental bodies are authorized to contract with one another, there is a potential basis for common-law incompatibility based on conflicting loyalties, depending on the particular facts. Tex. Att'y Gen. Op. No. GA-0786 (2010) at 5. Resolving the incompatibility question with respect to any particular contract would require an analysis of the public interest as a whole and whether the same person could perform the duties of both offices without interfering with his or her separate allegiance to each entity. Such a determination is a factual inquiry, which cannot be resolved in the opinion process. Tex. Att'y Gen. Op. No. GA-1020 (2013) at 2-3. Thus, we cannot determine as a matter of law whether common-law conflicting-loyalties incompatibility would bar the dual service about which you ask.

Your second question involves a Board member serving as the county treasurer, which is a public office. See Tex. Att'y Gen. Op. No. JC-0490 (2002) at 1 (relying on Aldine, 280 S.W.2d at 583). We therefore apply the common-law conflicting-loyalties incompatibility analysis.[4] The duties of a county treasurer involve the receipt and disbursement of money belonging to the county, which includes "direct[ing] prosecution for the recovery of any debt owed to the county" and "supervis[ing] the collection of debt." TEX. LOC. GOV'T CODE ANN. § 113.902(a) (West 2008). The commissioners court, as "the executive head of the county," however, also has the authority to initiate collection suits. Simmons v. Ratliff, 182 S.W.2d 827, 829 (Tex. Civ. App. Amarillo 1944, writ ref'd w.o.m.). This office has previously concluded that such non-exclusive authority of the county treasurer does not rise to the level of a conflicting loyalty. See Tex. Att'y Gen. Op. No. JC-0490 (2002) at 4 (citing Simmons, 182 S.W.2d at 829). We can discern no other way in which the duties and functions of the two offices might overlap.[5] A court would likely conclude that the doctrine of incompatibility does not bar a Board member from simultaneously serving as the county treasurer.

SUMMARY

The dual office-holding provision of article XVI, section 40(a) of the Texas Constitution does not prohibit a board member of the Maverick County Hospital District from serving the county in other official capacities.

Whether the conflicting-loyalties aspect of the common law doctrine of incompatibility prohibits a board member of the Maverick County Hospital District from simultaneously serving as a commissioner of a housing authority where the two entities have contracted with each other depends on whether holding both offices is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other. Such a determination is a factual inquiry, which cannot be resolved through the opinion process.

A court would likely conclude that the conflicting-loyalties aspect of the common-law doctrine of incompatibility does not prohibit a board member of the Maverick County Hospital District from simultaneously serving as the Maverick County Treasurer.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Rafael Anchia, House Comm. on Int'l Trade & Intergov'tl Affairs, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 5, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You do not ask about the self-appointment or self-employment aspects of incompatibility, but given that none of the positions at issue appoints or employs each other, neither aspect is applicable in this instance.

[3] In the specific example you provide, the individual was a housing authority commissioner when he was elected to the Board. Request Letter at 1. You have not asked, and we do not address, what effect, if any, the election to the Board had on the housing authority position. In any event, briefing received by this office indicates that the individual no longer serves as a housing authority commissioner. See Brief from Ricardo E. Calderon, Maverick Cnty. Hosp. Dist. Bd. of Dir., at 1-2 (Apr. 29, 2014) (on file with the Op. Comm.). Thus, we analyze your question in general terms.

[4] You contend that the individual in question is not an "officer" because he is merely serving out the remaining two years of a four-year term following a vacancy. Request Letter at 2. "[A]n essential element of an office [is] that its duties are continuing in nature and not intermittent." Tex. Att'y Gen. Op. No. JM-847 (1988) at 3 (citing Knox v. Johnson, 141 S.W.2d 698, 700 (Tex. Civ. App.-Austin 1940, writ ref'd)). Something can be "intermittent" when it "occur[s] at irregular intervals" or is "not continuous or steady." NEW OXFORD AMERICAN DICTIONARY 907 (2010). Two years of service as county treasurer is regular and continuous, and thus it is a public office for purposes of our analysis.

[5] The county treasurer "serves as treasurer of the construction and maintenance fund and the interest and sinking fund of [a hospital] district" created under the authority of chapter 282 of the Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 282.062(a) (West 2010). The District, however, is created by the Legislature pursuant to special law and not through chapter 282, and thus the Maverick County Treasurer does not serve the District in this manner. TEX. SPEC. DIST. CODE ANN. § 1118.002 (West 2013).