Can a school board trustee also serve on a city planning and zoning commission in Texas?

Plain-English summary

Webb County Attorney Marco Montemayor asked whether a member of the board of trustees of an independent school district may simultaneously serve as a member of a city planning and zoning commission. The two positions were with entities that share overlapping boundaries: the United Independent School District and the City of Laredo.

The AG worked through two bodies of law. First, the constitutional ban on dual office holding in article XVI, section 40(a) forbids holding more than one civil office of emolument, which means an office entitled to a pecuniary profit, gain, or advantage. A trustee on an independent school district board serves without compensation, so that position is not an office of emolument, and the constitutional ban did not apply.

Second, the common-law doctrine of incompatibility, which has three components: self-appointment, self-employment, and conflicting loyalties. Because neither office hires, employs, or supervises the other, only the conflicting-loyalties component was in play. That component applies only when both positions are public offices. The AG determined that both were. A school board trustee is a public officer, and, following the earlier opinion JC-0339, a city planning and zoning commission member exercises a sovereign zoning function delegated by chapter 211 of the Local Government Code and so is also a public officer. Here, the Laredo planning and zoning commission controlled platting, replatting, and subdividing land and could make and amend a comprehensive plan for the city's development.

The AG then explained why the duties conflict. A school board acquires and holds the district's real property and the title to that property is vested in the trustees. It is foreseeable that district property could be subject to the commission's actions, such as a determination about whether new school buildings conform to the city's comprehensive plan, the approval of a subdivision plat containing a new school building, or a rezoning to accommodate a school. Because of these potential real-property interactions, a person serving as an officer of both would likely have divided loyalties detrimental to the public interest, so the AG concluded a court would likely hold that one person may not serve on the Laredo planning and zoning commission while serving as a United ISD trustee.

Currency note

This opinion was issued in 2016. 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.

What the opinion meant for those who asked

The Webb County Attorney (as the opinion described it): The opinion answered the question by concluding that a court would likely hold the conflicting-loyalties aspect of common-law incompatibility precludes one person from serving simultaneously as a United ISD trustee and a member of the City of Laredo planning and zoning commission.

The trustee–commission member (as the opinion described the situation): The opinion treated the two offices as incompatible under the common-law doctrine, even though the constitutional dual-office ban did not apply because an unpaid school trustee does not hold an office of emolument.

The school district and the city (as the opinion described them): The opinion explained that because the school board holds the district's real property and the planning and zoning commission controls platting and the comprehensive plan, the two bodies' interests over that property were likely to conflict, which made the conflicting-loyalties aspect the deciding factor.

Common questions

Does the Texas Constitution bar a school trustee from holding another office?
As the opinion described it, not on these facts. Article XVI, section 40(a) bans holding more than one civil office of emolument, and a school trustee serves without compensation, so that position is not an office of emolument and the constitutional ban did not apply.

Why are the two offices still incompatible?
The opinion relied on the common-law conflicting-loyalties doctrine. Two governing bodies are incompatible when one may exert authority contrary to the other's interests. Because the school district's real property could be subject to the planning and zoning commission's platting and zoning decisions, their interests were likely to conflict.

Is a planning and zoning commission member a public officer?
The opinion said yes here. Following opinion JC-0339, it treated the zoning function as a sovereign function delegated by chapter 211 of the Local Government Code, and the Laredo commission's control over platting, subdivision, and the comprehensive plan made its members public officers under the Aldine test.

Does this rule apply to every school trustee and zoning commission?
The opinion was tied to these specific entities and their overlapping territory. It turned on the Laredo commission's particular powers over platting and the comprehensive plan and on the school district's real-property holdings within the city, not on a flat rule for all districts and commissions.

Is an AG opinion binding on this question?
No. AG opinions are persuasive authority, not binding law. The opinion predicted how a court would likely rule; only a court can finally decide whether the offices are incompatible.

Background and statutory framework

The Texas Constitution prohibits holding more than one civil office of emolument, which is a pecuniary profit, gain, or advantage (Tex. Const. art. XVI, § 40(a); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)). A trustee on an independent school district board serves without compensation and so is not in an office of emolument (Tex. Educ. Code § 11.061(d)). A civil officer under section 40(a) is a public officer who exercises the powers or authority of civil government (Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.—Beaumont 1966, writ ref'd n.r.e.)).

Common-law incompatibility has three components: self-appointment, self-employment, and conflicting loyalties, and the conflicting-loyalties component applies only when both positions are public offices (Tex. Att'y Gen. Op. Nos. KP-0032 (2015), GA-0214 (2004), GA-0127 (2003)). A public officer is one on whom a sovereign function of government is conferred to be exercised for the benefit of the public largely independent of the control of others, and a school board trustee meets that test (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955); Tex. Att'y Gen. Op. No. GA-1083 (2014)). The zoning function is a sovereign function delegated to municipalities by chapter 211 of the Local Government Code, exercised through an appointed zoning commission, and a planning and zoning commission with control over plat approval and variances exercises that power as a public officer (Tex. Att'y Gen. Op. No. JC-0339 (2001); Tex. Loc. Gov't Code § 211.007(a)). The crucial question for incompatibility is whether occupancy of both offices is detrimental to the public interest or whether the duties of one interfere with the duties of the other (Pirtle, 887 S.W.2d at 930; Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927)).

The Laredo planning and zoning commission controlled platting, replatting, and subdividing land and could make and amend a comprehensive plan for the city's development (Laredo, Tex., Code of Ordinances §§ 24.1.1.1.3(1), 24.1.1.1.3(3)). A school board acquires and holds the district's real property, and rights and title to that property are vested in the trustees (Tex. Educ. Code §§ 11.151(a), 11.151(b)). Whether the two entities each have taxing authority or authority to contract with each other can also bear on dual-office scenarios with overlapping territory, but the AG did not need to reach those issues given the conflict in the nature of the two offices' duties (Tex. Att'y Gen. Op. No. KP-0054 (2015)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40(a)
• Tex. Educ. Code §§ 11.061(d), 11.151(a), 11.151(b)
• Tex. Loc. Gov't Code § 211.007(a)
• Laredo, Tex., Code of Ordinances §§ 24.1.1.1.3(1), 24.1.1.1.3(3)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0032 (2015)
• Tex. Att'y Gen. Op. No. GA-0214 (2004)
• Tex. Att'y Gen. Op. No. GA-0127 (2003)
• Tex. Att'y Gen. Op. No. GA-1083 (2014)
• Tex. Att'y Gen. Op. No. JC-0339 (2001)
• Tex. Att'y Gen. Op. No. KP-0054 (2015)

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)
• Tilley v. Rogers, 405 S.W.2d 220 (Tex. Civ. App.—Beaumont 1966, writ ref'd n.r.e.)
• Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0114
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0114.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 3, 2016

The Honorable Marco A. Montemayor Opinion No. KP-0114
Webb County Attorney
1110 Washington Street, Suite 301 Re: Whether a member of a board of trustees of
Laredo, Texas 78040 an independent school district may
simultaneously serve as a member of a city
planning and zoning commission (RQ-0104-KP)

Dear Mr. Montemayor:

    You ask whether a member of a board of trustees of an independent school district may simultaneously serve as a member of a city planning and zoning commission. [1] You indicate that the two positions at issue are with entities that share overlapping jurisdictional boundaries: the United Independent School District ("District") and the City of Laredo ("City"). See Request Letter at 1, 3.

    We first consider the incompatibility of the two offices under the Texas Constitution. Article XVI, section 40(a) provides that "[n]o person shall hold or exercise at the same time, more than one civil office [2] of emolument." TEX. CONST. art. XVI, § 40(a) (footnote added). This provision applies if both positions are offices that are entitled to an emolument, which 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). A trustee serving on the school board of an independent school district serves without compensation and is not in an office of emolument. TEX. EDUC. CODE § 11.061(d). Accordingly, article XVI, section 40(a) does not prohibit the simultaneous service about which you ask.

    We next consider whether the common law renders the two positions incompatible. Common-law incompatibility comprises three components: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. You tell us that neither office hires, employs, or supervises the other; thus, the relevant component is the one of conflicting-loyalties. See Request Letter at 3.

    A Texas court first described conflicting-loyalties incompatibility in the case of Thomas v. Abernathy County Line Independent School District. 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). Considering the simultaneous service of a school trustee and a city council member, the court said that

            there are in the city council or board of aldermen various directory or supervisory powers exertable in respect to school property located within the city or town and in respect to the duties of school trustee performable within its limits-e.g., there might well arise a conflict of discretion or duty in respect to health, quarantine, sanitary, and fire prevention regulations. If the same person could be a school trustee and a member of the city council or board of aldermen at the same time, school policies, in many important respects, would be subject to the direction of the council or aldermen instead of to that of the trustees.

Id. at 153. In determining whether two offices are incompatible, the "crucial question is whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other." Pirtle, 887 S.W.2d at 930. As with article XVI, section 40(a), the conflicting loyalties component of common-law incompatibility applies only when both positions are offices. See Tex. Att'y Gen. Op. Nos. GA-0214 (2004) at 4, GA-0127 (2003) at 3.

    A public officer in this context is one upon 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). This office previously determined that the position of a school board trustee is a public office under Aldine. See Tex. Att'y Gen. Op. No. GA-1083 (2014) at 2.

    In a prior opinion, this office considered the status of a member of the Missouri City planning and zoning commission. See Tex. Att'y Gen. Op. No. JC-0339 (2001). This office noted that the zoning function is a sovereign function delegated to municipalities by chapter 211 of the Local Government Code. See id. at 2. Opinion JC-0339 recognized that a municipality delegates this sovereign function when it appoints a planning and zoning commission. See id. at 2-3; see also TEX. LOC. GOV'T CODE § 211.007(a) ("To exercise the powers authorized by this subchapter, the governing body of a home-rule municipality shall, and the governing body of a general-law municipality may, appoint a zoning commission."). Opinion JC-0339 examined the powers and duties of the Missouri City planning and zoning commission and determined that the Missouri City charter delegated to the planning and zoning commission the final approval of subdivision plats. See Tex. Att'y Gen. Op. No. JC-0339 (2001) at 3. In addition, Opinion JC-0339 observed that the Missouri City charter gave the planning and zoning commission authority to grant a developer a variance from a rule or regulation on subdivisions. See id. Based on the planning and zoning members' exercise of zoning power "for the benefit of the public largely independent of the control of others," Aldine, 280 S.W.2d at 583, this office determined that the Missouri City planning and zoning members were public officers under Aldine. Tex. Att'y Gen. Op. No. JC-0339 (2001) at 3.

    Here, similar to the situation in Opinion JC-0339, the City's planning and zoning ordinance provisions give the planning and zoning commission control over platting, replatting, or subdividing land. See LAREDO, TEX., CODE OF ORDINANCES § 24.1.1.1.3(3). The City's planning and zoning commission also has authority to make and amend a comprehensive plan for the development of the City. See id. § 24.1.1.1.3(1). A court would likely determine this authority is sufficient to conclude that the members of the City's planning and zoning commission exercise a "sovereign function of the government ... for the benefit of the public largely independent of the control of others," and are thus public officers under Aldine. Aldine, 280 S.W.2d at 583.

    We next consider whether members of the City's planning and zoning commission have powers and duties that are incompatible with the powers and duties of a District trustee. Under chapter 11 of the Education Code, a board of trustees of an independent school district is authorized to acquire and hold real property. See TEX. EDUC. CODE § 11.151(a). Chapter 11 also vests rights and title to a district's school property in the trustees. See id. § 11.151(b). It is foreseeable that a school district may have a real property interest subject to action by the planning and zoning commission such as a determination regarding the conformity of the location of new school buildings to the City's comprehensive plan, the submission of a subdivision plat for approval that contains as an element a new school building, or the need to rezone an area to accommodate a school. See Request Letter at 3 (informing us that the "development of [school district property in the City limits] will eventually involve the property being platted for development which must be approved by the Planning and Zoning Commission"). Because of these and other potential real property interactions between the District and the City planning and zoning commission, a member serving as an officer of both entities would likely have divided loyalties such that the simultaneous service is detrimental to the public interest. As you suggest, it is foreseeable that the person's performance of duties of one of the offices may interfere with the person's performance of duties of the other. See id. Accordingly, a court would likely conclude that a person may not serve on the City of Laredo's planning and zoning commission while simultaneously serving as a member of the United Independent School District board of trustees. [3]

                                SUMMARY

                  A court would likely conclude that a member of a board of trustees of the United Independent School District may not simultaneously serve as a member of the City of Laredo's planning and zoning commission.

                                      Very truly yours,

                                      KEN PAXTON
                                      Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 1, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] A "civil officer" under this provision is a public officer. See 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) (orig. proceeding) (recognizing that a "'civil office' ... pertains to exercise of the powers or authority of civil government").

[3] Other issues common in dual office holding scenarios that involve jurisdictions with overlapping territory are whether the two entities each have taxing authority or have authority to contract with each other. See Tex. Att'y Gen. Op. No. KP-0054 (2015) at 2. Given our conclusion on the conflict between the nature of the duties of the two officer positions, we need not consider these issues.