Can one person serve as both a municipal utility district director and a city zoning commission member in Texas?

Plain-English summary

A state senator asked whether one person could serve at the same time as a director of Harris County Municipal Utility District No. 122 and as a member of the Missouri City Planning and Zoning Commission. The opinion concluded the answer was no, for two independent reasons.

The first reason was the common-law doctrine of incompatibility, which bars one person from holding two offices whose duties conflict. The opinion first established that both positions are public offices: a MUD director exercises a sovereign function of government (levying taxes, issuing bonds, managing district affairs) largely free of others' control, and so does a planning and zoning commission member who gives final approval to plats and grants subdivision variances. Because the commission, during plat approval, controls the manner and placement of utility facilities including those of MUDs, a commissioner who also sat on a MUD board would face divided loyalties. The opinion compared the situation to Thomas v. Abernathy County Line, the 1927 case that held the offices of school trustee and city alderman incompatible because of overlapping jurisdiction.

The second reason was specific to Missouri City: the city council had adopted an ordinance providing that "[a] member of the Planning and Zoning Commission may not hold another public office while serving as a Planning and Zoning Commission member." A home-rule city may adopt any ordinance not inconsistent with the constitution, general law, or its charter, and the opinion found nothing contrary to this one. So the ordinance independently barred the dual service.

Currency note

This opinion was issued in 2001. 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

MUD directors and city zoning commissioners (what the opinion held for them): The opinion held that holding both offices was barred by the common-law incompatibility doctrine wherever the district's territory fell within the city, because the zoning commission could impose its policies on the MUD's facilities during plat review.

Home-rule cities setting officeholder qualifications (what the opinion held for them): The opinion treated Missouri City's ordinance forbidding a zoning commissioner from holding another public office as a valid exercise of home-rule power that independently prohibited the dual service, separate from the common-law analysis.

Common questions

What is the common-law doctrine of incompatibility?
The opinion described it as a rule barring one person from holding two offices if their duties conflict, drawing on Thomas v. Abernathy County Line, which found school trustee and city alderman incompatible because of overlapping jurisdiction.

Why is a planning and zoning commission member a "public officer"?
The opinion applied the Aldine test: a public officer is someone on whom a sovereign function of government is conferred to exercise for the public largely independent of others' control. The commission's final authority over plats and variances met that test.

Did it matter that the commission members served without pay?
The opinion noted that the unpaid status meant article XVI, section 40 (barring holding two civil offices "of emolument") did not apply, but it explained that compensation is not relevant to the separate common-law incompatibility analysis.

Background and statutory framework

Municipal utility districts are created under article XVI, section 59 of the Texas Constitution and governed by chapters 49 and 54 of the Water Code. See Tex. Water Code Ann. § 54.011 (Vernon 1972). A MUD is run by a board of directors elected to four-year terms, responsible for "the management of all the affairs of the district." Id. § 49.057. Zoning authority is delegated to municipalities by chapter 211 of the Local Government Code; a home-rule city must appoint a zoning commission, and a planning and zoning commission gives final approval to plats under chapter 212. See Tex. Loc. Gov't Code Ann. §§ 211.007, 212.006 (Vernon 1999). The opinion measured both positions against Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955), found both to be public offices, and applied Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), to conclude their duties conflicted. A home-rule city may set officeholder qualifications by ordinance under article XI, section 5 of the constitution and section 26.041 of the Local Government Code.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40; art. XI, § 5 (Vernon 1993)
• Tex. Water Code Ann. §§ 49.051, .057, .103, 54.011, 54.012 (Vernon 1972, 2000)
• Tex. Loc. Gov't Code Ann. §§ 26.041, 211.007, 212.006 (Vernon 1999)

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)

Local enactment:

• Missouri City, Tex., Code § 2-136 (2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0339
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0339.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 12, 2001

The Honorable Rodney Ellis
Chair, Finance Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0339

Re: Whether an individual may simultaneously serve as director of a municipal utility district and member of the city zoning commission (RQ-0281-JC)

Dear Senator Ellis:

You ask whether an individual who serves as director of Harris County Municipal Utility District No. 122 (the "MUD") may also serve as a member of the Planning and Zoning Commission for the City of Missouri City (the "Planning and Zoning Commission"). We conclude that one person is barred from holding both offices by the common-law doctrine of incompatibility as well as by a city ordinance.

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," subject to exceptions that are not relevant to your question. TEX. CONST. art. XVI, § 40. We are informed, however, that members of the Planning and Zoning Commission serve without compensation.[1] If a member of the Planning and Zoning Commission does not receive compensation, he or she is not a civil officer of emolument, and article XVI, section 40 of the Texas Constitution would not bar one person from serving on that body and holding another office.

The common-law doctrine of incompatibility may, however, prevent this dual service, whether or not a member of the Planning and Zoning Commission receives compensation for that position. See Tex. Att'y Gen. LO 93-070, at 3-4; LO 88-049, at 2 (compensation is not relevant to determining whether offices are incompatible). The common-law doctrine of incompatibility bars one person from holding two offices if their duties conflict. Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). The opinion in Thomas v. Abernathy County Line held that the offices of school trustee and city alderman were incompatible. Id. at 153. The boundaries of the two jurisdictions overlapped, and the board of aldermen had authority over health, quarantine, sanitary, and fire prevention regulations applicable to school property. Id. If the same person were both a school trustee and a member of the board of aldermen at the same time, one office might impose its policies on the other. See generally Tex. Att'y Gen. Op. No. JC-0270 (2000) at 2. Accordingly, we consider whether directors of municipal utility districts and members of the Planning and Zoning Commission are officers.

Municipal utility districts ("MUDs") are created under the authority of article XVI, section 59 of the Texas Constitution. TEX. WATER CODE ANN. § 54.011 (Vernon 1972). They are subject to chapters 49 and 54 of the Water Code, which apply respectively to general law water districts and to municipal utility districts. See id. §§ 49.001(a), 54.001 (Vernon 1972 & Supp. 2001). Municipal utility districts are created for the water control, storage, and distribution purposes stated in section 54.012 of the Water Code. Id. § 54.012 (Vernon 1972). They are governed by a board of directors, who are elected to four-year terms. Id. §§ 49.051, .103 (Vernon 2000).

The Board is responsible for "the management of all the affairs of the district." Id. § 49.057. It may levy and collect a tax for operation and maintenance purposes, id. § 49.107, issue bonds, notes, or other obligations to borrow money for its purposes, id. § 49.152, and exercise various other powers set out in Water Code chapter 49. See, e.g., id. §§ 49.153, .154 (issuance of revenue notes and bond anticipation notes); 49.212 (adoption of charges, fees, or rentals for provision of district services). The Texas Supreme Court has stated the following test for determining whether an individual holds a public office: "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); see also Tex. Att'y Gen. Op. No. JC-0184 (2000) at 2 (director of a municipal utility district is a public official for purposes of Government Code, chapter 573, relating to nepotism). A director of a MUD is a public officer within the test stated by the Texas Supreme Court in Aldine.

We next consider whether members of the Missouri City Planning and Zoning Commission are officers. Zoning authority is delegated to municipalities by Local Government Code, chapter 211. To exercise the power authorized by this subchapter, the governing body of a home-rule city shall appoint a zoning commission. TEX. LOC. GOV'T CODE ANN. § 211.007 (Vernon 1999); see id. (if municipality has a municipal planning commission, it may appoint that commission to serve as the zoning commission). The legislature has authorized a city to delegate some part of its sovereign power to the zoning commission it creates. See id. §§ 211.006(f) (city council may provide that vote of three-fourths of its members is required to overrule zoning commissioners' recommendation to deny proposed change to regulation or boundary); 211.007(b) (governing body of a home-rule city may not take action on a matter until it receives the final report of the zoning commission); see generally Tex. Att'y Gen. Op. No. JM-704 (1987) at 2 (concluding that members of the Lufkin City Zoning and Planning Commission are civil officers of emolument); see also Tex. Att'y Gen. Op. No. DM-309 (1994) at 2 (member of Dallas Planning and Zoning Commission is a "local public official" within Local Government Code chapter 171). If the Missouri City Planning and Zoning Commission exercises governmental powers delegated by the city council, its members will be public officers.

The Planning and Zoning Commission of Missouri City consists of nine citizens of Missouri City who are appointed by the city council for a term of two years. See MISSOURI CITY, TEX., CHARTER ART. VIII, § 8.01 (1986); see also MISSOURI CITY, TEX., CODE § 2-132. The commission is responsible for final approval of plats under chapter 212, subchapter A of the Local Government Code. See TEX. LOC. GOV'T CODE ANN. § 212.006 (Vernon 1999); MISSOURI CITY, TEX., CODE § 82-5(a) (1981) (Planning and Zoning Commission authorized to approve final plat, plan or plat of a subdivision). In addition, the commission may grant a developer a variance from a rule or regulation on subdivisions under the circumstances set out in the city code. MISSOURI CITY, TEX., CODE § 82-7 (1981). In our opinion, members of the Missouri City Planning and Zoning Commission exercise a sovereign function of the government "for the benefit of the public largely independent of the control of others" within the Aldine test and are therefore public officers.

Our next consideration is whether members of the Missouri City Planning and Zoning Commission have powers and duties that are incompatible with the powers and duties of a director of Harris County Municipal Utility District No. 122. The city attorney states that during the plat approval process, the Planning and Zoning Commission requires submittal of preliminary utility plans to assist in determining the feasibility of a proposed development.[2] The nature and location of water and sewer services must be identified, and the plat must show utility easements and facilities such as utility plants. The city attorney suggests that a member of the Planning and Zoning Commission who is a director of a MUD may have divided loyalties when the proposed development is located within the MUD on whose board he serves. In this situation, the Planning and Zoning Commission is able to control and impose its policies on the MUD, by determining the manner and placement of the MUD's facilities.

On the basis of Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), we agree with the city attorney that the two offices are incompatible, and that a member of the Planning and Zoning Commission who also serves on Harris County Municipal Utility District No. 122 would have divided loyalties in facing decisions that affected his MUD. We conclude that the common-law doctrine of incompatibility prevents a member of the Missouri City Planning and Zoning Commission from at the same time serving as director of a municipal utility district with territory within the boundaries of Missouri City.

Finally, the city council of Missouri City has adopted the following ordinance establishing the qualifications of members of the Planning and Zoning Commission: "A member of the Planning and Zoning Commission may not hold another public office while serving as a Planning and Zoning Commission member." MISSOURI CITY, TEX., CODE § 2-136 (2000).

A home-rule city may adopt any ordinance that is not inconsistent with the constitution, general laws, or its city charter. TEX. CONST. ANN. art. XI, § 5 (Vernon 1993). We are not aware of any provision of the constitution, laws, or the Missouri City charter which is contrary to the city ordinance, and none has been pointed out to us. See generally TEX. LOC. GOV'T CODE ANN. §§ 26.041 (Vernon 1999) (home-rule city may create offices and prescribe qualifications for officers); 211.007(a) (governing body of a home-rule city shall create a zoning commission). This city ordinance prohibits a member of the Missouri Planning and Zoning Commission from at the same time holding office as director of a municipal utility district.[3]

[1] Letter from Mr. James H. Ragan, Jr., to Senator Rodney Ellis (Sept. 5, 2000) (attachment to request letter from the Honorable Rodney Ellis, Texas State Senate, to the Honorable John Cornyn, Texas Attorney General (Sept. 7, 2000) (on file with Opinion Committee).

[2] Letter from Mary Ann Pruett, City Attorney of Missouri City, to Ms. Susan D. Gusky, Chair, Opinion Committee (Oct. 11, 2000) (on file with Opinion Committee).

[3] The city attorney also informs us that Missouri City has 17 in-city MUDs that provide water and sewer services to its citizens. The city has begun a regionalization program for wastewater treatment services that involves building regional wastewater treatment plants and contracting with MUDs to treat their wastewater at a regional plant. The city has contracted with two in-city MUDs and is negotiating with two others to provide this service, but the city attorney does not indicate that the city has contracted or plans to contract with Harris County Municipal Utility District No. 122. In view of our conclusion based on other facts, we need not consider whether these facts alone would make service as director of Harris County Municipal Utility District No. 122 incompatible with service on the Planning and Zoning Commission.

SUMMARY

A director of a Municipal Utility District holds a public office, as does a member of the Planning and Zoning Commission of the City of Missouri City. Because the duties of the two offices are in conflict where they have overlapping jurisdiction, the common-law doctrine of incompatibility bars one person from holding both offices. A Missouri City ordinance also prohibits a member of the Planning and Zoning Commission from holding another public office while serving as a Planning and Zoning Commission member.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee