Can a juvenile probation officer also serve on or chair the school board that helps fund their department in Texas?

Plain-English summary

Nolan County Attorney Lisa Peterson asked whether one person could lawfully hold two roles at once: a juvenile probation officer for the Fisher, Mitchell, and Nolan Counties Juvenile Department, and the presiding member of the Sweetwater Independent School District's board of trustees. Two features of the arrangement worried her. The school district is one of the governmental bodies that partially funds the juvenile department, so the district's budget process could put the probation officer in a position to vote on funding her own department. And because the probation officer and a district-appointed juvenile case manager have overlapping duties, a meeting between the district and the department might be needed, and only the presiding member of the district board can call such a meeting, so the officer could end up requiring her own supervisors to meet with a board she chairs.

The AG worked through each legal doctrine that could bar the dual service and found none did. Article XVI, section 40 of the Texas Constitution forbids holding two civil offices "of emolument" (paid offices) at the same time. A school trustee holds a public office, but the position is unpaid, so it is not an office "of emolument," and the constitutional bar did not apply.

The AG then turned to the common-law doctrine of incompatibility, which has three branches: conflicting loyalties, self-appointment, and self-employment. Conflicting-loyalties incompatibility applies only when both positions are public offices, and a juvenile probation officer (who is subordinate to the chief juvenile probation officer and does not act independently of the juvenile board's control) is not a public officer, so that branch did not apply. Self-appointment incompatibility (a person both making an appointment and being the appointee) did not apply because the presiding member of the school board has no power to appoint department personnel; that power belongs to the chief juvenile probation officer and the department's board. Self-employment incompatibility (holding an office that supervises one's own employment) did not apply because the school board's presiding member does not supervise the probation officer; partial funding and the authority to call a meeting do not create supervisory control.

Finally, the AG considered chapter 171 of the Local Government Code, which requires a local public official with a "substantial interest in a business entity" to file an affidavit and abstain. The presiding officer of a school board is a local public official, and the officer's salary could exceed the 10-percent-of-income threshold that defines a substantial interest. But the AG explained that a juvenile probation department is likely not a "business entity" under chapter 171 because it is a public, not private, entity. And even if chapter 171 did apply, it only requires an affidavit and abstention from the specific matter; it does not bar serving in both positions. The AG noted that following the declare-and-abstain procedure could still be a prudent course for officials who want to avoid any appearance of impropriety.

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

County Attorney Peterson and the official holding both roles (as the opinion described it): The opinion concluded that holding the juvenile probation officer job and the presiding-trustee seat at the same time was not incompatible and likely did not create a conflict of interest under chapter 171. It reached the same result for the presiding-officer role specifically, finding no appointment or supervisory power over the department that would trigger incompatibility.

School district trustees and presiding officers (as the opinion described it): The opinion described a trustee position as a public office that is unpaid, so it is not an office "of emolument" under article XVI, section 40. It described the presiding officer of a school board as a "local public official" under chapter 171 whose obligations, if chapter 171 applied, would be to file an affidavit and abstain from the matter, not to give up either position.

Juvenile probation departments (as the opinion described it): The opinion described a juvenile probation officer as not a public officer (subordinate to the chief juvenile probation officer and not acting independently of the juvenile board) and described a juvenile probation department as likely a public rather than business entity for chapter 171 purposes. It described the power to hire department personnel as belonging to the chief juvenile probation officer and the department's board, not to the school district.

Common questions

Can a juvenile probation officer also sit on a school board in Texas?
The AG concluded that the dual service described was not incompatible and likely did not create a chapter 171 conflict, so the same person could hold both positions.

Does it matter that the school district helps fund the juvenile department?
The AG explained that the district's partial funding of the department does not give the district (or its presiding member) authority to supervise department employees, so it did not create self-employment incompatibility. The AG also noted that even if chapter 171's conflict rules applied, they would require an affidavit and abstention, not resignation.

Why isn't holding two government positions barred by the constitution here?
The AG explained that article XVI, section 40 only bars holding two civil offices "of emolument," meaning paid offices, and a school trustee serves without compensation, so the position is not one of emolument.

Is a juvenile probation officer a "public officer"?
No. The AG explained that a juvenile probation officer is subordinate to the chief juvenile probation officer and does not exercise duties independent of the control of others, so the officer is not a public officer for these purposes.

Should the official still file a conflict-of-interest affidavit?
The AG explained that chapter 171 likely did not require it, but noted that following chapter 171's procedure of declaring a conflict and abstaining may be a prudent course for local officials who wish to avoid any appearance of impropriety.

Background and statutory framework

The juvenile department at issue serves Fisher, Mitchell, and Nolan counties (Tex. Hum. Res. Code Ann. §§ 152.0821 (West 2013) (Fisher County), 152.1741 (Mitchell County), 152.1831 (Nolan County)), and the Sweetwater Independent School District partially funds its operations (id. § 152.1831(d), (g) (West 2013)). A meeting between the district and the department's board may be called under the Education Code, and a district may appoint a juvenile case manager (Tex. Educ. Code Ann. § 37.013 (West 2012); Tex. Code Crim. Proc. Ann. art. 45.056(a)(2) (West Supp. 2013)). The request letter also referenced the separation-of-powers provision (Tex. Const. art. II, § 1), which the office no longer treats as a bar to dual office holding.

The AG first applied article XVI, section 40, which 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 "civil office" is a public office (Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)), and while a school trustee holds a public office, the position is uncompensated and so is not one "of emolument" (Tex. Educ. Code Ann. § 11.061(d) (West 2012); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)).

On common-law incompatibility, the determining factor distinguishing a public officer from an employee is whether a sovereign function is exercised "largely independent of the control of others" (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)). A chief juvenile probation officer performs some sovereign functions but not independently of the juvenile board, and is not an officer (Harris Cnty. v. Schoenbacher, 594 S.W.2d 106, 111 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)); a juvenile probation officer, subordinate to the chief, is even less independent (Tex. Hum. Res. Code Ann. § 152.0008(b) (West 2013)). Self-appointment incompatibility derives from Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928), but the presiding member of the school board has no power to appoint department personnel, a power that belongs to the chief juvenile probation officer and the department's board (Tex. Hum. Res. Code Ann. §§ 152.0008(a) (West 2013), 142.002(a)). Self-employment incompatibility turns on the officer's supervision of the employment, and the school board's presiding member does not supervise the probation officer; partial funding and the authority to call a meeting under section 37.013 do not confer supervisory control (Tex. Educ. Code Ann. § 37.013 (West 2012)).

Chapter 171 of the Local Government Code requires a local public official with a "substantial interest in a business entity" to declare the interest in an affidavit and abstain (Tex. Loc. Gov't Code Ann. § 171.004(a) (West 2008)). A school board's presiding officer is a "local public official" (id. § 171.001(1)), and a "substantial interest" includes funds exceeding 10 percent of the person's gross income for the prior year (id. § 171.002(2)). But a juvenile probation department is likely not a business entity because it is public, not private, and even if chapter 171 applied, it requires only an affidavit and abstention rather than barring dual service. The AG drew its incompatibility and chapter 171 framework from prior opinions of the office (Tex. Att'y Gen. Op. Nos. GA-0738 (2009), GA-0826 (2010), GA-0766 (2010), GA-0348 (2005), GA-0536 (2007), GA-0015 (2003)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40 (bar on holding two civil offices of emolument)
• Tex. Const. art. II, § 1 (separation of powers)
• Tex. Hum. Res. Code Ann. § 152.0821 (West 2013) (Fisher County juvenile department)
• Tex. Hum. Res. Code Ann. § 152.1741 (West 2013) (Mitchell County)
• Tex. Hum. Res. Code Ann. § 152.1831 (West 2013) (Nolan County)
• Tex. Hum. Res. Code Ann. § 152.1831(d), (g) (West 2013) (district funding of the department)
• Tex. Hum. Res. Code Ann. § 152.0008(a) (West 2013) (appointment of department personnel)
• Tex. Hum. Res. Code Ann. § 152.0008(b) (West 2013) (juvenile probation officer subordinate to chief)
• Tex. Hum. Res. Code Ann. § 142.002(a) (hiring authority of the juvenile board)
• Tex. Educ. Code Ann. § 37.013 (West 2012) (meeting between district and juvenile board)
• Tex. Educ. Code Ann. § 11.061(d) (West 2012) (trustees serve without compensation)
• Tex. Code Crim. Proc. Ann. art. 45.056(a)(2) (West Supp. 2013) (juvenile case manager)
• Tex. Loc. Gov't Code Ann. § 171.004(a) (West 2008) (affidavit and abstention)
• Tex. Loc. Gov't Code Ann. § 171.001(1) (definition of "local public official")
• Tex. Loc. Gov't Code Ann. § 171.002(2) (definition of "substantial interest")

Cases:

• Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Harris Cnty. v. Schoenbacher, 594 S.W.2d 106, 111 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0738 (2009)
• Tex. Att'y Gen. Op. No. GA-0826 (2010)
• Tex. Att'y Gen. Op. No. GA-0766 (2010)
• Tex. Att'y Gen. Op. No. GA-0348 (2005)
• Tex. Att'y Gen. Op. No. GA-0536 (2007)
• Tex. Att'y Gen. Op. No. GA-0015 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1083
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1083.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

October 7, 2014

The Honorable Lisa L. Peterson Opinion No. GA-1083
Nolan County Attorney
100 East 3rd Street, Suite 106A Re: Whether concurrent service as a juvenile
Sweetwater, Texas 79556 probation officer and a trustee on an
independent school district's board of trustees
creates a conflict of interest (RQ-1195-GA)

Dear Ms. Peterson:

You ask about the service of a juvenile probation officer who also serves as the presiding member of an independent school district board of trustees.[1] You ask:

1) Given the funding provision of the enabling statute, does concurrent employment with the Fisher, Mitchell and Nolan Counties Juvenile Department and service on the Sweetwater Independent School District Board of Trustees constitute a conflict of interest?

2) If service as a member of the Board of Trustees does not create such a conflict, does serving as the presiding officer of the Board constitute a conflict?

Request Letter at 1-2.

You tell us the Juvenile Department ("Department") comprises Fisher, Mitchell, and Nolan counties. See id.; TEX. HUM. RES. CODE ANN. §§ 152.0821 (West 2013) (Fisher County), 152.1741 (Mitchell County), 152.1831 (Nolan County). You inform us that the individual is employed by the Department as a probation officer. See Request Letter at 1. You also tell us that the individual serves as the presiding member of the board of trustees of the Sweetwater Independent School District ("District"), which is located in Nolan County. See id.

Your questions are prompted by two potential situations in which the positions may interact. See id. at 2-3. First, you note that the District, as one of the constituent governmental bodies of the Department, partially funds the Department's operations. See id. at 2; see also TEX. HUM. RES. CODE ANN. § 152.1831(d), (g) (West 2013). You are concerned that the District's preparation of its budget places the juvenile probation officer in a position to participate in the District's decisions to fund the Department. See Request Letter at 3. You also raise the possibility of the interaction between the juvenile probation officer and a juvenile case manager appointed by the District. Id. at 2. Those two positions have potentially overlapping duties that may necessitate the need for a meeting between the Department and the District, which may be called only by the presiding member of the District's board. See TEX. EDUC. CODE ANN. § 37.013 (West 2012); see also TEX. CODE CRIM. PROC. ANN. art. 45.056(a)(2) (West Supp. 2013). You are concerned about a situation in which an employee of the Department requires her supervisors to meet with a governmental body she chairs. See Request Letter at 2. Mindful of these possible situations, we turn to your questions.[2]

We first consider article XVI, section 40 of the Texas Constitution, which 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 "civil office" for purposes of this provision is a "public office." Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.). The position of school district trustee is a public office, but as it is an uncompensated position, it is not one "of emolument." Tex. Att'y Gen. Op. No. GA-0738 (2009) at 2; see also TEX. EDUC. CODE ANN. § 11.061(d) (West 2012) ("The trustees serve without compensation."); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) ("An 'emolument' is a pecuniary profit, gain, or advantage."). Article XVI, section 40 does not bar the dual service here.

Absent a constitutional prohibition, we next consider the common-law doctrine of incompatibility. There are three aspects: (1) self-appointment, (2) self-employment, and (3) conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0826 (2010) at 2. The last of the three, conflicting-loyalties incompatibility, requires that both positions be public offices. Tex. Att'y Gen. Op. No. GA-0766 (2010) at 2. The Texas Supreme Court has said 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). A Texas court of appeals has determined that a chief juvenile probation officer has some authority to perform some sovereign functions of government but does not perform them largely independent of the control of the juvenile board and is not an officer. See Harris Cnty. v. Schoenbacher, 594 S.W.2d 106, 111 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.). Subordinate to the chief juvenile probation officer, a juvenile probation officer certainly cannot be said to exercise duties, sovereign or otherwise, independent of the control of others. See TEX. HUM. RES. CODE ANN. § 152.0008(b) (West 2013). A juvenile probation officer is not a public officer under article XVI, section 40. As a result, conflicting-loyalties incompatibility does not bar the dual service in question.

Self-appointment incompatibility derives from the Texas Supreme Court's decision in Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). In Ehlinger, the court recognized the incompatibility of a person being both a member of a body making an appointment and an appointee of that body. Id. (ruling that county judge could not be employed as attorney by the commissioners court over which the judge presided). The presiding member of the District's board of trustees has no power of appointment over the personnel of the Department. See TEX. HUM. RES. CODE ANN. § 152.0008(a) (West 2013). That power belongs to the chief juvenile probation officer and the Department's board. See id.; see also id. § 142.002(a). Thus, self-appointment incompatibility also does not bar the dual service in question.

Remaining is self-employment incompatibility, which prohibits an individual "from holding both an office and an employment that the office supervises." Tex. Att'y Gen. Op. No. GA-0826 (2010) at 2. It is applicable when the officer has a direct supervisory role over his or her own employment or when the relationship between the two positions gives rise to a "great risk that one would impose its policies on the other." Tex. Att'y Gen. Op. No. GA-0348 (2005) at 3. The officer's supervision of the employee is key. See Tex. Att'y Gen. Op. No. GA-0536 (2007) at 4. The presiding member of the District's board of trustees does not directly supervise the juvenile probation officer. The District's partial funding of the Department does not authorize the District (including its presiding member) to supervise employees of the Department. Similarly, section 37.013 of the Education Code, which authorizes a meeting held between the District and the Department's board, is not a basis for the District or its presiding member to control, supervise or impose policies on the employees of the Department. TEX. EDUC. CODE ANN. § 37.013 (West 2012). Accordingly, the dual service you describe is not prohibited by self-employment incompatibility.

Finally, conflicts of interest at the local government level are governed by chapter 171 of the Local Government Code, which provides that "[i]f a local public official has a substantial interest in a business entity," the official must declare the interest in an affidavit filed with the governmental body and abstain from further participation in the matter. TEX. LOC. GOV'T CODE ANN. § 171.004(a) (West 2008). The presiding officer of a school district board of trustees falls within the definition of "local public official" for purposes of chapter 171. See id. § 171.001(1). The definition of a "substantial interest" includes "funds received by the person from the business entity [that] exceed 10 percent of the person's gross income for the previous year" and likely includes the juvenile probation officer's salary. Id. § 171.002(2). Yet, a juvenile probation department is likely not a business entity under chapter 171 because it is a public, not private, entity. See Tex. Att'y Gen. Op. No. GA-0826 (2010) at 1. Even assuming the Department was a business entity, as we noted above, chapter 171 requires only that the local public official file an affidavit with the board and abstain from further participation in the matter. See TEX. LOC. GOV'T CODE ANN. § 171.004(a) (West 2008). It does not bar concurrent dual service. Tex. Att'y Gen. Op. No. GA-0015 (2003) at 4-5 (distinguishing incompatibility from conflicts of interest under chapter 171). Whether or not chapter 171 applies to the situation you describe, following its procedures-declaring a conflict of interest and abstaining from participation in related matters-may be a prudent course for local officials who wish to avoid any appearance of impropriety.

SUMMARY

Concurrent employment with the Fisher, Mitchell, and Nolan Counties Juvenile Department and service as the presiding member of the Sweetwater Independent School District is not incompatible and likely does not constitute a conflict of interest under chapter 171 of the Local Government Code.

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

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Lisa L. Peterson, Nolan Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Apr. 3, 2014), https://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] In your request letter, you refer to the separation-of-powers provision in the Texas Constitution. See Request Letter at 2; see also TEX. CONST. art. II, § 1. In the past, this office considered the provision as a prohibition against dual office holding, but we "have long since abandoned the use of the doctrine as a bar to dual office holding." Tex. Att'y Gen. Op. No. GA-0348 (2005) at 2.