When a Texas school district spins off its community college to a separate board, can the same trustees sit on both?

Texas AG Opinion JM-934: Splitting a School and College Board

Plain-English summary

For years, the Houston Independent School District ran the Houston Community College System. The same people who sat on the school board also acted as the college's governing board, just wearing a different hat when they met to handle college business. In 1988 the district decided to spin the college off, giving it its own separate nine-member board of trustees, as the Education Code allows. The state's Higher Education Coordinating Board asked the Attorney General a natural question: when that happens, can the current trustees keep their seats on the college side, or serve on both boards at once?

The Attorney General said no, and the reasoning is a bit subtle.

The key point is that, before the split, there is really only one board: the school district's. The trustees were not sitting on a separate community college board; they were the school board applying college rules when they turned to college matters. So there was no separate college seat for anyone to "retain." The statute confirms this, describing the district's board as the only one that exists until a separate junior college board is appointed. A current school trustee, then, can get onto the new college board only one way: by being appointed to it.

And that is where a long-standing legal rule gets in the way. The common-law doctrine of incompatibility says an official who holds the power to appoint people to an office cannot appoint himself to that office. It is considered against public policy to use your appointing power to install yourself. Texas courts have applied this in exactly analogous settings, for example holding that a school district's trustees could not appoint themselves as the district's board of equalization. So the HISD trustees, who hold the power to appoint the new college board, cannot appoint themselves to it.

There is a way through, though. The bar exists only while the person is still a trustee (including as a "holdover" who stays in office until a successor is named). If a school trustee resigns and is actually replaced by someone else, so that he is no longer holding the school office at all, then the incompatibility problem disappears. At that point he is just a private citizen, and the new board is free to appoint him.

Because those answers resolved the matter, the Attorney General did not need to reach a third question about serving out the rest of a term on both boards after the split.

Currency note

This opinion was issued in 1988. 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 junior college governance provisions in chapter 130 of the Education Code have been amended since 1988, and section numbers may differ today. The common-law incompatibility doctrine and the holdover-officer rule in article XVI, section 17 of the Texas Constitution remain part of Texas law, but their application to any particular board transition should be checked against current statutes and cases. Anyone handling a community college separation today should rely on the current Education Code and current case law rather than the provisions cited here.

Who this opinion affected (as of 1988)

HISD trustees and the new community college board: The opinion told them a sitting school trustee could not be appointed to the spun-off college board while still in the school office, only after resigning and being replaced.

Other school districts with junior colleges: The opinion set out how the incompatibility doctrine constrains a board that divests a community college under section 130.016.

The Higher Education Coordinating Board: The opinion clarified the governance mechanics of separating a community college from its founding school district.

Common questions

Can a school trustee keep serving on the community college board after the boards are separated?
No. The Attorney General concluded there is no separate community college seat to "retain" before the split, because only the school district's board exists until a separate college board is appointed. A trustee can join the new board only by appointment.

Why can't the trustees just appoint themselves to the new college board?
Because of the common-law doctrine of incompatibility, which bars officials who hold the appointing power from appointing themselves to offices they may appoint. The trustees hold the power to appoint the new board.

Is there any way for a current trustee to end up on the new board?
Yes. If the trustee resigns from the school board and is replaced, so he is no longer a holdover officer, the incompatibility doctrine no longer bars his appointment to the community college board.

What is a "holdover officer"?
Under article XVI, section 17 of the Texas Constitution, an officer continues to serve after his term until a successor is qualified. While a trustee is holding over, he still holds the office, so the incompatibility bar still applies.

Background and statutory framework

The Houston Community College System was established by the Houston Independent School District under the predecessor of section 130.011 of the Education Code, which allows an independent school district meeting certain requirements to establish an "independent school district junior college" (Attorney General Opinions M-876, M-851 (1971)). The district's board of trustees serves as the board of the community college district but exercises different powers and duties for each entity, and the community college district and the independent school district are separate legal entities (Attorney General Opinion MW-504 (1982)). Section 130.016 provides that a junior college established by an independent or city school district may be governed by a separate board of trustees, placed in authority either by the school board divesting itself of the college's management and appointing a separate nine-member board, or by a petition-and-election procedure.

Sections 130.016 and 130.017 show that only the board of the independent school district exists prior to the appointment of a separate board for the junior college district; section 130.017(a) provides for a petition by 10 percent of the qualified electors and an election on whether the school board shall be divested of its authority as governing board of the junior college district. Thus HISD trustees are not members of a separate community college board and cannot "retain" such membership; they may become members of the newly created separate board only by appointment under section 130.016 or 130.017.

That appointment is subject to the common-law doctrine of incompatibility. It is well established that all officers who have the appointing power are disqualified for appointment to offices to which they may appoint (Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928) (commissioners court could not employ the county judge as its attorney)). The rule has barred a school district's board of trustees from appointing themselves as the district's board of equalization (St. Louis Southwestern Railway Co. of Texas v. Naples I.S.D., 30 S.W.2d 703 (Tex. Civ. App. - Texarkana 1930, no writ), which explained that it is contrary to the policy of the law for an officer to use his official appointing power to place himself in office). A trustee who serves on the HISD board therefore may not be appointed to the newly created Houston Community College System board. If a trustee resigns from the HISD board and is replaced by another person, so that he no longer continues in office as a holdover officer under article XVI, section 17 of the Texas Constitution, the incompatibility doctrine will no longer bar his appointment (Attorney General Opinion O-410 (1939); see also Attorney General Opinion C-452 (1965)). Given these answers, the office did not reach the third question about serving out the remainder of a term on both boards after separation.

Citations

Statutory and constitutional authority:

• Section 130.011, Education Code (establishment of an independent school district junior college)
• Section 130.016, Education Code (governance of a junior college by a separate board; divestiture and appointment)
• Section 130.017, Education Code (petition and election to divest the school board of authority)
• Article XVI, section 17, Texas Constitution (holdover officers serve until a successor qualifies)

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928) (Texas Supreme Court; officers with the appointing power are disqualified from appointment to offices they may appoint)
• St. Louis Southwestern Railway Co. of Texas v. Naples I.S.D., 30 S.W.2d 703 (Tex. Civ. App. - Texarkana 1930, no writ) (Texas appellate court; trustees may not appoint themselves as the board of equalization)

Prior Attorney General materials referenced: M-876 (1971); M-851 (1971); MW-504 (1982); O-410 (1939); C-452 (1965).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-934
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0934.pdf

Original opinion text

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

July 28, 1988

Honorable Kenneth H. Ashworth
Commissioner
Texas Higher Education Coordinating Board
P. O. Box 12788
Austin, Texas 78711

Opinion No. JM-934

Re: Dual membership on Board of Trustees of Houston Independent School District and Houston Community College District (RQ-1421)

Dear Mr. Ashworth:

You ask three questions which arise out of the proposal of the Board of Education for the Houston Independent School District to divest itself of the management, control, and operation of the Houston Community College System pursuant to section 130.016 of the Texas Education Code. The Houston Community College System was established by the Houston Independent School District in accordance with the predecessor provision of section 130.011 of the Education Code. See Attorney General Opinions M-876, M-851 (1971). Section 130.011 provides that an "independent school district junior college" may be established by an independent school district which meets certain requirements. Educ. Code section 130.011(a). The board of trustees of the independent school district serves as board of trustees of the community college district, but exercises different powers and duties for each entity. Attorney General Opinions MW-504 (1982); M-876 (1971). The community college district and the independent school district that created it are separate legal entities. Attorney General Opinion MW-504 (1982).

The Houston Independent School District Board of Education now intends to create a separate board of trustees for the community college system in accordance with section 130.016 of the Education Code, which provides in part:

(a) A junior college established by an independent school district . . . may be governed, administered, and controlled by and under the direction of a separate board of trustees, which may be placed in authority by either of the following procedures:

(1) the board of trustees of an independent school district or city school district which has the management, control, and operation of a junior college may divest itself of the management, control, and operation of that junior college so maintained and operated by the school board by appointing for the junior college district a separate board of trustees of nine members; or

(2) [petition and election procedure on question of whether school board of trustees shall be divested of authority as governing board of junior college district.] (Emphasis added.)

Educ. Code section 130.016.

Your first two questions are as follows:

1. May a trustee who currently serves as a member of both the HCCS Board and the HISD Board retain his or her position on the HCCS Board of Trustees if he or she resigns from the HISD Board of Education?

2. If the answer to the first question is yes, must the trustee resign from the HISD Board of Education, or can the member elect to serve on the new HCCS Board while also serving as a trustee of the HISD?

We will deal with these two questions together.

At present, the Board of Education for the Houston Independent School District governs the Houston Community College System, applying Education Code provisions relevant to community colleges when it convenes to make decisions for the community college system. It is not, however, two boards composed of the same persons, even though, as the attorneys for the community college system and the independent school district inform us, it conducts the business of the independent school district and the business of the community college system at different meetings and identifies itself as both "the Board of Education for the Houston Independent School District" and "the Board of Trustees for the Houston Community College System."

The underlined language of section 130.016 of the Education Code shows that only the board of the independent school district exists prior to the appointment of a separate board for the junior college district. The language of section 130.017 of the Education Code, which provides for a petition and election to divest the school board of its authority over a junior college, also demonstrates that only the board of the independent school district exists as a legal entity before the appointment of a board for the junior college district. Section 130.017(a) of the Education Code provides as follows:

(a) On a petition signed by 10 percent of the qualified electors of the independent school district or city school district, the board of trustees within 30 days shall call an election after the petition has been duly presented on the proposition of whether the school board of trustees shall be divested of its authority as governing board of such junior college district. (Emphasis added.)

Educ. Code section 130.017(a).

Thus, under the Education Code, the trustees of the Houston Independent School District are not members of a board of trustees for a community college and cannot therefore "retain" membership on the separate board of trustees for the community college system. Members of the Houston Independent School District Board of Trustees may become members of the newly created separate board of trustees for the junior college district only by appointment to it pursuant to section 130.016 or 130.017 of the Education Code.

The appointment of the new board is, however, subject to the common law doctrine of incompatibility. It is well established that all officers who have the appointing power are disqualified for appointment to offices to which they may appoint. Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928) (commissioners court could not employ county judge as its attorney). This rule has been applied to bar the board of trustees of a school district from appointing themselves as the board of equalization for the district. St. Louis Southwestern Railway Co. of Texas v. Naples I.S.D., 30 S.W.2d 703 (Tex. Civ. App. - Texarkana 1930, no writ). The court stated as follows:

It is contrary to the policy of the law for an officer to use his official appointing power to place himself in office, so that, even in the absence of statutory inhibition, all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint.

St. Louis Southwestern Railway Co. of Texas v. Naples I.S.D., supra, at 706 (quoting 46 C.J. Officers section 43, at 940; see 67 C.J.S. Officers section 23 at 269). A trustee who serves on the board of the Houston Independent School District may not be appointed to the newly created board of trustees for the Houston Community College System. If a trustee resigns from the board of trustees for the Houston Independent School District and is replaced by another person so that he no longer continues in the office as a holdover officer pursuant to article XVI, section 17 of the Texas Constitution, the common law doctrine of incompatibility will no longer bar his appointment to the board of trustees for the Houston Community College System. Attorney General Opinion O-410 (1939) (member of board of directors of Texas Tech could not be appointed president of college by board when successor had not been appointed). See also Attorney General Opinion C-452 (1965).

Your third question is as follows:

3. May a current member of the HISD and HCCS Boards serve the remainder of his or her current term on both boards after a separation of the two boards has occurred?

In view of our answer to your first two questions, we need not answer your third question.

SUMMARY

The board of trustees of the Houston Independent School District, which established the Houston Community College System pursuant to the predecessor of section 130.011 of the Education Code, governs the community college system but does not constitute a separate board of trustees for the community college system. When the board of trustees of the independent school district acts to divest itself of the management, control, and operation of the community college district by appointing a separate board of trustees for it pursuant to section 130.016 of the Education Code, it may not appoint any of its own members to the separate board of trustees of the community college district. The common law doctrine of incompatibility prevents an officer from using his appointive power to appoint himself to an office. If a member of the independent school district resigns his office and is replaced so that he is no longer a holdover officer under article XVI, section 17, of the Texas Constitution, the common law doctrine of incompatibility will not prevent his appointment as trustee of the separate board of trustees for the community college district.

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

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General