Can a Texas city council member also work for a school district, special district, or navigation district?

Texas AG Opinion JM-1266: When Can a City Council Member Also Hold a District Job?

Plain-English summary

The Chambers County Attorney gave the Attorney General six real-world combinations and asked whether one person could legally hold both positions in each. A city council member (paid a $40 monthly expense allowance) or a mayor ($80) also being: (1) a county sanitation and safety officer, (2) a conservation-and-reclamation-district employee, (3) a school-district teacher, (4) a school-district employee, (5) a navigation-district director paid a per diem, or (6) a hospital-district employee.

The main rule is Article XVI, section 40 of the Texas Constitution, which says no person may hold "more than one civil office of emolument" at the same time. The whole question turns on the difference between an office and a job. The courts distinguish them by asking whether the person exercises a "sovereign function of the government, largely independent of the control of others." Someone who can be fired at will by a superior body is an employee, not an officer, because the superior body can dictate his every act. Elected mayors and council members are clearly officers.

Using that test, the opinion sorted the six examples. The county sanitation officer, the conservation-and-reclamation-district employee, and the hospital-district employee (examples 1, 2, and 6) are all subject to control by a superior body, so they are employments, not offices. Section 40 does not bar a council member from holding any of them.

The school-district positions (examples 3 and 4) are also employments, so section 40's one-office rule is not the obstacle. But section 40 has a second clause: a person who is paid, directly or indirectly, from state funds and is not a state officer may serve on a city council or as mayor only if they take no salary for that governing-body service. School teachers and employees are partly state-paid, so they may sit on the council only without council pay. That made the character of the $40 or $80 "expense allowance" decisive. The opinion concluded a district employee cannot collect council pay just by relabeling salary as an "expense allowance." A genuine expense reimbursement is fine, but at a minimum the official should be able to show by affidavit that his actual monthly expenses equal or exceed the allowance, and the better practice is to itemize.

The navigation-district director (example 5) is different because that position is an office, and the director is paid a per diem. So section 40 bars the council-plus-director combination unless the council allowance is genuine expense reimbursement (making the council seat not an office "of emolument"). On top of that, because both are offices, the common-law doctrine of incompatibility comes into play. That doctrine bars one person from holding two offices where one could impose its policies on, or control, the other. The opinion could not say the two offices are incompatible as a matter of law, but flagged that if the navigation district and the city overlap geographically, there is at least a potential for conflicting loyalties, and if the two contract with each other, or if the district has and uses taxing power, the conflict is probably enough to make the offices incompatible.

Currency note

This opinion was issued in 1990. 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.

Who this opinion affected (as of 1990)

City council members and mayors: The opinion set out when they could hold a second district position. If the second position was a mere employment (examples 1, 2, 6), section 40 posed no bar. If it was a state-paid school job (3, 4), they could serve on the council only without council salary. If it was a district office like a navigation-district directorship (5), added limits applied.

School district teachers and employees: They could serve as council member or mayor, but only by renouncing any salary for that service; a monthly "expense allowance" would count as salary unless it genuinely reimbursed actual expenses.

Navigation districts and their directors: A director holds an office, so combining it with a city council seat implicated both section 40 (unless the council allowance was true reimbursement) and common-law incompatibility where the district and city territories overlapped.

Common questions

Can a city council member also hold a salaried district job?
Yes, if that job is an employment rather than an office. The opinion concluded a county sanitation officer, a conservation-and-reclamation-district employee, and a hospital-district employee are employments (subject to control by a superior body), so Article XVI, section 40 does not bar a council member from also holding them.

Can a public school teacher serve on the city council?
Yes, but only without pay for the council service. Because teachers are partly compensated from state funds, Article XVI, section 40 lets them serve on a governing body only if they receive no salary for it. A monthly "expense allowance" is acceptable only if it genuinely reimburses expenses, not if it is really compensation.

Is a $40 or $80 monthly "expense allowance" a salary?
It can be. The opinion said a district employee cannot draw council pay merely by calling it an expense allowance. At minimum the official should submit an affidavit that actual monthly expenses equal or exceed the allowance, and the better practice is to itemize expenses each month.

Can a city council member also be a navigation district director?
Only if the council allowance is genuine expense reimbursement, because a navigation-district directorship is a paid office and section 40 bars holding two offices of emolument. Even then, common-law incompatibility may bar the combination if the district and city overlap, especially if they contract with each other or the district taxes, though the opinion would not call them incompatible as a matter of law.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution is the primary limit on dual office holding, providing (with exceptions) that no person may hold or exercise more than one civil office of emolument at the same time. The line between an officer and an employee turns on whether the person exercises a sovereign function of government largely independent of the control of others (Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955), quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App. - Galveston 1949, writ ref'd)). Elected officials are officers, so the mayor and council members were officers for section 40 purposes. Positions subject to termination at will by a superior body are employments (Attorney General Opinion JM-499 (1986), treating a chief appraiser reviewable by and serving at the pleasure of the appraisal review board as an employee). On that basis the county sanitation officer, conservation-and-reclamation-district employee, and hospital-district employee (examples 1, 2, 6) were employments not barred by section 40.

Article XVI, section 40 separately provides that state employees or other individuals who receive all or part of their compensation, directly or indirectly, from state funds, and who are not state officers, are not barred from serving on the governing bodies of school districts, cities, or other local governmental districts, but shall receive no salary for that service. Because school teachers and employees are partly state-compensated, they may serve as council member or mayor only without salary for the service (Attorney General Opinions JM-118 (1983); MW-230 (1980); Letter Advisory No. 20 (1973)). "Salary" does not include legitimate reimbursement of expenses (Whitehead v. Julian, 476 S.W.2d 844 (Tex. 1972) (an expense allowance does not make an office a "lucrative office" unless salary, fees, or other compensation is paid); Willis v. Potts, 377 S.W.2d 622 (Tex. 1964) (a token $10-per-meeting payment does make a council seat a "lucrative office"); Attorney General Opinions MW-450 (1982); MW-230). The opinion concluded a district employee could not draw council compensation merely by denominating a $40 or $80 monthly payment an "expense allowance," and that the official should at least submit an affidavit that actual expenses equal or exceed the allowance, with itemization the better practice (Attorney General Opinion H-992 (1977)).

A navigation-district director holds an office and, receiving a per diem, could serve on a council only if the council seat was not one of emolument, applying the same expense-reimbursement test. Because both were offices, the common-law doctrine of incompatibility also applied. That doctrine bars one person from holding two offices where one might impose its policies on, or control, the other (Attorney General Opinions JM-129 (1984); JM-133 (1984)). The "conflicting loyalties" branch of the doctrine (as distinct from the self-employment branch, see Letter Advisory No. 114 (1975)) had never been applied where one position was an office and the other an employment; the original Texas incompatibility case involved two offices, city alderman and school trustee (Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)), and prior opinions had found incompatible the offices of community-college trustee and county commissioner (JM-129) and of county auditor and city council member (JM-133; see also Letter Advisory No. 149 (1977)). The opinion concluded incompatibility did not reach examples 1-4 or 6 (each involving an employment), and that for example 5, where both positions are offices, incompatibility may but does not as a matter of law bar serving as both a navigation-district director and a council member where the district and municipality overlap.

Citations

Constitutional authority:

• Tex. Const. art. XVI, § 40 (prohibition on holding more than one civil office of emolument; salary limit for state-paid persons serving on local governing bodies)

Cases:

• Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App. - Galveston 1949, writ ref'd)
• Whitehead v. Julian, 476 S.W.2d 844 (Tex. 1972)
• Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)
• Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)

Prior Attorney General opinions and letter advisories referenced:

• Attorney General Opinions JM-499 (1986); JM-118 (1983); JM-129 (1984); JM-133 (1984); MW-230 (1980); MW-450 (1982); H-992 (1977)
• Letter Advisories No. 20 (1973); No. 114 (1975); No. 149 (1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1266
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1266.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

December 20, 1990

Honorable Charles S. Brack
Chambers County Attorney
P. O. Box 1200
Anahuac, Texas 77514

Opinion No. JM-1266

Re: Whether a city council member may simultaneously serve as a county special district or school district employee, or as a director of a navigation district (RQ-2145)

Dear Mr. Brack:

You have requested our opinion regarding six possible instances of dual office holding. We will briefly describe each example before addressing the subject in general terms.

1. A city council member who receives a $40 per month expense allowance and who is also a county sanitation and safety officer, a salaried position appointed by the commissioners court.

2. A city council member who receives a $40 per month expense allowance and who is also a salaried employee of a conservation and reclamation district.

3. A city council member who receives a $40 per month expense allowance and who is also a salaried teacher employed by a school district.

4. A mayor who receives an $80 per month expense allowance and who is also a salaried employee of a school district.

5. A city council member who receives a $40 per month expense allowance and who also holds a per diem compensated appointment as director of a navigation district.

6. A city council member who receives a $40 per month expense allowance and who is also a salaried employee of a hospital district.

Article XVI, section 40, of the Texas Constitution furnishes the primary constitutional impediment to dual office holding. With various exceptions, it provides that "no person shall hold or exercise at the same time more than one civil office of emolument." The Supreme Court has repeatedly held that the determining factor in distinguishing an officer from an employee is whether the individual in question exercises a "sovereign function of the government . . . largely independent of the control of others." Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955), quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App. - Galveston 1949, writ ref'd). Elected officials are clearly officers, and therefore the mayor and city council members under consideration here are officers for purposes of article XVI, section 40.

As to the other positions of which you inquire, it is useful to consider Attorney General Opinion JM-499 (1986), where we held that the chief appraiser of an appraisal district is an employee rather than an officer. The opinion turned on the consideration that the chief appraiser exercised his responsibilities subject to review and correction by the appraisal review board, and served at their pleasure. In our opinion, if an individual may be terminated at will by a superior body, he can hardly be said to exercise power "largely independent of the control of others," since the superior body is in a position to dictate his every act. Based on these criteria, we may conclude that since each of the positions in examples 1, 2, and 6 is subject to control by a superior body, those positions are employments rather than offices. Thus, article XVI, section 40, does not bar a city council member from holding simultaneous positions as a county sanitation and safety officer, an employee of a conservation and reclamation district, or an employee of a hospital district.

With regard to your third and fourth examples, a further inquiry is necessary. Article XVI, section 40, also establishes an additional restriction for certain employees who serve on the governing bodies of a city or other local governmental districts. It provides in pertinent part:

State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies.

Tex. Const. art. XVI, § 40. Teachers and other employees of school districts receive a portion of their compensation from funds of the state of Texas. As a result, they may serve as city council members or as mayor only if they receive no salary for such service. Attorney General Opinion JM-118 (1983); MW-230 (1980). We must therefore determine whether the $40 or $80 per month "expense allowance" constitutes a salary. If it constitutes a salary, the school teacher must renounce it in order to serve on the city council. Letter Advisory No. 20 (1973).

For purposes of the quoted provision of article XVI, section 40, "salary" does not include legitimate reimbursement of expenses. See generally Whitehead v. Julian, 476 S.W.2d 844 (Tex. 1972) (expense allowance does not make office a "lucrative office"; salary, fees, or other compensation must be paid); Willis v. Potts, 377 S.W.2d 622 (Tex. 1964) (token payment of $10 per meeting makes city council member's office a "lucrative office"); Attorney General Opinion MW-450 (1982); MW-230. In the examples you cite, we do not believe that the school teacher or other salaried employee of the school district may receive compensation for serving as mayor or city council member merely by denominating a $40 or $80 monthly payment an "expense allowance" rather than a "salary." At the very least, the official should submit an affidavit that the actual expenses he incurs each month equal or exceed the allowance payment. The better practice would be for the official to itemize his expenses each month in order to demonstrate that the allowance does not exceed expenses incurred. See Attorney General Opinion H-992 (1977).

As to your fifth example, a director of a navigation district holds an office, and since, by your description, he receives a per diem compensation for such service, he may avoid the prohibition of article XVI, section 40, only if his city council position is not one of emolument. The same test applied to the school district employees in your third and fourth examples is applicable here: if the "expense allowance" can be fairly demonstrated to constitute reimbursement for actual expenses, the constitutional provision does not bar the city council member from also serving as director of a navigation district.

We must also consider the common law doctrine of incompatibility as applied to the positions of which you inquire. That doctrine prohibits one individual from occupying "two offices where one office might thereby impose its policies on the other or subject it to control in some other way." Attorney General Opinion JM-129 (1984); see also Attorney General Opinion JM-133 (1984). The aspect of the doctrine relevant here, sometimes called the "conflicting loyalties" type of incompatibility to distinguish it from the "self-employment" type, see Letter Advisory No. 114 (1975), has never been held to apply to a situation in which one position is an office and the other an employment. Indeed, the original Texas case involving incompatibility, Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), involved the offices of city alderman and school trustee. On other occasions, we have held incompatible the offices of community college trustee and county commissioner, Attorney General Opinion JM-129, and the offices of county auditor and city council member, Attorney General Opinion JM-133; see also Letter Advisory No. 149 (1977).

Applying these principles to your six examples, we believe it is clear that incompatibility has no application to numbers 1-4 or to number 6, since in each instance one of the positions is a mere employment. As to the fifth example, it is equally apparent that both positions are offices. If the geographical boundaries of the navigation district overlap with those of the city of which the individual is a council member, there is at least a potential for conflicting loyalties. We cannot say as a matter of law, however, that these positions are incompatible. If, for example, the two political subdivisions contract with each other, there probably exists sufficient potential for conflicting loyalties as to render the two positions incompatible. Again, if the navigation district has and exercises taxing authority, the potential for conflict is probably insurmountable. We conclude that the common law doctrine of incompatibility may, but does not as a matter of law, prohibit a single individual from serving both as a member of a board of directors of a navigation district and as a city council member of a municipality where the territory of the district and municipality overlap.

                   SUMMARY

       Neither article XVI, section 40, of the Texas Constitution nor the common law doctrine of incompatibility bars a city council member from simultaneously serving as a county sanitation and safety officer, an employee of a conservation and reclamation district, or an employee of a hospital district. A mayor or city council member is not barred by incompatibility from simultaneously serving as an employee of an independent school district, but he must renounce any salary or compensation for serving as mayor or city council member. A city council member is barred by article XVI, section 40, from serving as a director of a navigation district unless the allowance received for serving as council member can be demonstrated to constitute reimbursement for expenses only. Common-law incompatibility may, depending on the circumstances, bar one individual from serving both as city council member and as director of a navigation district, but it does not do so as a matter of law.

                               Very truly yours,

                               JIM MATTOX
                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General