Texas AG Opinion No. JS-0006: Can an Individual Hold Two Different Public Offices Simultaneously?

robind Uncategorized

Texas Attorney General Opinion No. JS-0006 highlights an interesting dilemma that arises when an individual is elected to a second public office in Texas – can he or she hold two different public offices simultaneously?

The answer, as with most questions of Texas law, is maybe

According to the Texas AG, conflicting loyalties prohibit a board member of the Hidalgo County Irrigation District No. 6 from simultaneously serving in the office of trustee on the La Joya Independent School District board.

The AG’s opinion, which is “persuasive authority” but not “binding precedent,” reviews the relevant case law and concludes that:

  • The common-law doctrine of incompatibility prohibits an individual from holding the two public offices in question,
  • The acceptance of the second (incompatible) office operated as a resignation of the first office, and
  • The “constitutional holdover provision” of Article XVI, subsection 17(a) does not apply.

The Common-Law Doctrine of Incompatibility

It is important to remember that an AG Opinion does not “have the force of law.” It is, literally, the Attorney General’s opinion as to how the courts would decide a particular issue.  If the AG is correct as to this issue, however, then 1) the board of the Hidalgo County Irrigation District No. 6 currently has a vacancy, but 2) the individual in question retains their position as a La Joya school board trustee.

According to the AG Opinion, the individual is barred from serving in both public offices by the common-law doctrine of incompatibility, which recognizes and prohibits three kinds of conflicts in dual service: 1) self-employment, 2) self-appointment, and 3) conflicting loyalties. In this case, self-employment and self-appointment are not at issue, but conflicting loyalties is a problem because the two districts have overlapping geographic boundaries, and each has the power of taxation.

Conflicting Loyalties

The AG finds that both positions are “public offices” on which “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) (quoting Dunbar v. Brazoria Cnty., 224 S.W.2d 738, 740–41 (Tex. Civ. App. Galveston 1949, writ ref’d)), disapproved on other grounds, Nat’l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690, 693–94 (Tex. 1968).

Furthermore, the geographic boundaries of the two districts overlap and each has the power of taxation. According to the AG Opinion (which “bootstraps” its opinion here by citing other AG Opinions but no case law), “[w]hen ‘two districts with overlapping geographical jurisdictions each have the power of taxation, . . . the potential for conflict is insurmountable.’” Citing Tex. Att’y Gen. Op. No. KP-0125 (2017) at 2 (quoting Tex. Att’y Gen. Op. No. KP-0023 (2015) at 2, Tex. Att’y Gen. Op. No. GA-0032 (2003) at 5; Tex. Att’y Gen. Op. No. GA-0786 (2010) at 3–4.

Relying on previous AG opinions, the AG predicts that “a court would likely conclude that a person may not simultaneously serve as a board member of the School District and as a board member of the Irrigation District.”

Acceptance of a Second Incompatible Office Operates as Resignation of the First Office

What happens, then, if an individual who already holds a public office is elected to or otherwise accepts a second public office that presents a conflict under the common-law doctrine of incompatibility?

According to the AG, “an officeholder who accepts and qualifies for a second incompatible office automatically resigns from the first office as a matter of law,” See, e.g., Tex. Att’y Gen. Op. No. GA-0015 (2003) at 5, and “a court would likely conclude that [the individual] resigned from the board of the Irrigation District upon acceptance and qualification of the office of trustee for the School District.”

The Constitutional Holdover Provision

Article XVI, subsection 17(a) of the Texas Constitution says, “[e]xcept as provided by Subsection (b) of this section, all officers of this State shall continue to perform the duties of their offices until their successors shall be duly qualified.”

Despite the mandatory nature of this constitutional provision, the AG’s opinion predicts that Texas courts will find that the constitutional holdover provision does not apply in situations where a vacancy is created by an automatic resignation where two offices are incompatible – if a person is not capable of holding both positions, they cannot holdover in the first office. Tex. Att’y Gen. Op. No. KP-0014 (2015) at 2. State ex rel. Peden v. Valentine, 198 S.W. 1006, 1007 (Tex. Civ. App.—Fort Worth 1917, writ ref’d); Pruitt, 84 S.W.2d at 1007; but see Bianchi v. State, 444 S.W.3d 231, 248 (Tex. App.—Corpus Christi-Edinburg 2014, no pet.) (concluding that the holdover provision applies to a vacancy created by an automatic resignation in the context where two offices were not incompatible but continued service in the current office was prohibited by the resign-to-run provision in Texas Constitution article XVI, section 65).

So, can an individual hold two different elected positions simultaneously?

The answer is maybe, but there are many ways dual service could be prohibited, including when both offices present a conflict because the geographical areas of two districts overlap, and each office has the power of taxation.

Please feel free to contact one of our Murray Lobb attorneys to obtain our legal advice in practice areas including employment law, corporate law, construction law, real estate law, banking law, and probate and estate planning.