2017 Op. Tex. Att'y Gen. 1 (2017)

handle is hein.sag/sagtx0219 and id is 1 raw text is: 

                                     KEN   PAXTON
                                 ATTORNEY GENERAL  OF TEXAS

                                      January 3, 2017

The  Honorable Sharen Wilson                   Opinion No.  KP-0125
Tarrant County Criminal. District Attorney
401 West  Belknap                              Re:  Simultaneous  service on the board of
Fort Worth, Texas 76196                        trustees of a public library district and on the
                                               city council (RQ-0115 -KP)

Dear Ms. Wilson:

       You  seek our opinion on the simultaneous service of a person on the city council of the
City of Forest Hill and as a member of the Forest Hill public library district board.1 You tell us
that at the May 2016 election the same person was elected to the city council of the City of Forest
Hill (City) as well as to the board of trustees of the Forest Hill public library district (District).
See Request Letter at 1. You inform us that the District is located within the territorial limits of
the [C]ity. Id. at 2.

       Article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously
holding more than one office of emolument. TEX. CONST. art. XVI,  40(a). An 'emolument'
is compensation paid to the officer and does not include reimbursement for actual expenses. Tex.
Att'y Gen. Op. No. KP-0023 (2015) at 1. Here, the City's charter provides that its council members
do not receive compensation.  See FOREST  HILL, TEX., CODE  OF ORDINANCES,  pt. 1, art. III,
  3.03 (2007) (Home  Rule  Charter). Thus, a city council position is not one of emolument.
Accordingly, article XVI, section 40(a) does not bar one person holding the two offices aboui
which  you ask. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
(recognizing that both positions must be civil offices of emolument for article XVI, section 40(a)
to be applicable); see also Tex. Att'y Gen. Op. No. KP-0032 (2015) at 1.

       We  next consider the common-law  doctrine of incompatibility. The doctrine has three
components:  self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen.
Op. No.  KP-0032  (2015) at 2. The circumstances you describe implicate only the conflicting
loyalties component. See Request Letter at 2. In Thomas v. Abernathy County Line Independent
School District, a Texas court first determined two offices to be incompatible. 290 S.W. 152, 153
(Tex. Comm'n  App.  1927, judgm't adopted) (determining the offices of school trustee and city
alderman to be incompatible). In its decision, the court said that

        'See Letter from Honorable Sharen Wilson, Tarrant Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex.
 Att'y Gen. at 1 (July 7, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs (Request

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