The opinion
The Attorney General of Texas
JIM MATTOX December 5, 1983
Attorney General
Supreme Court Building Mr. Larry Temple Opinion No. m-97
P. 0. Box 12546 Chairman
Austin, TX. 76711. 2546 Coordinating Board Re: Whether an individual
512/475-2601
Telex 9101674-1367
Texas College and University System may 8srve simultaneously as a
Telecopier 5121475.0266 P. 0. Box 12788, Capitol Station member of the Coordinating
Austin, Texas 78711 Board and a Junior College
Board
714 Jackson, Suite 700
Dallas, TX. 75202.4506
2141742.6944
Dear Mr. Temple:
You have asked us to determine who is the proper holder of one of
4624 Alberta Ave., Suite 160 the positions on the Coordinating Board of the Texas College and
El Paso, TX. 79905.2793 University System -- Dr. Gwendolyn Morrison or Mr. George Bramblett.
9151533.3484
You inform us that Governor Clements appointed Dr. Morrison to the
Coordinating Board of the Texas College and University System in
pO1 Texas. Suite 700 October, 1979 for a term to expire in August, 1985. At the time of
.ouston, TX. 77002-3111 her appointment to the Coordinating Board of the Texas College and
7131223-5666 University System Dr. Morrison was serving a six-year term on the
Tarrant County Junior College Roard to which she was elected in April,
1976. Against the advice of Governor Clements' legal staff, Dr.
606 Broadway, Suite 312
Lubbock. TX. 79401.3479 Morrison continued to serve on the Tarrant County Junior College Board
6W747.5236 after her appointment to the Coordinating Board of the Texas College
and University System. In April 1982, Dr. Morrison was x-elected to
her position on the Tarrant County Junior College Board. Contending
4309 N. Tenth, Suite B
McAllen, TX. 76501.1665
that Dr. Morrison could not serve concurrent terms on the two boards,
5121662-4547 Governor Mark White appointed Mr. George Bramblett to the Coordinating
Board of the Texas College and University System to replace Dr.
Morrison on October 6, 1983.
200 Main Plaza, Suite 400
San Antonio. TX. 76205.2797
512/225-4191
Dr. Morrison insists that she can continue to serve on both
boards and that Governor White's appointment of Mr. Bramblett was
invalid. We disagree with Dr. Morrison. We conclude that Dr.
An Equal Opportunity/ Morrison relinquished her position on the Coordinating Board of the
Affirmative Action Employer Texas College and University System when she began her second term on
the Tarrant County Junior College Board and that Mr. Bramblett is the
proper holder of the position vacated by Dr. Morrison.
Texas law provides that one person may not hold two civil offices
which are incompatible. Attorney General Opinion O-3308 (1941). This
office has determined incompatibility on a case-by-case basis. See
Attorney General Opinions M-842 (1971) (offices of domestic relations
p. 411
Mr. Larry Temple - Page 2 (JM-97)
judge and member of board of directors of Texas Southern University
are compatible); V-63 (1947) (offices of county commissioner and
trustee of independent school district are compatible); O-5145 (1943)
(offices of county commissioner and trustee of a rural high school
district are incompatible).
Attorney General Opinion V-63 set forth the following test for
determining whether two offices should be considered incompatible:
One of the most important tests as to whether
offices are incompatible is found in the principle
that the incompatibility is recognized whenever
one is subordinate to the other in some of its
important and principal duties, or is subject to
supervision by the other, or where a contrariety
and antagonism would result in the attempt by one
person to discharge the duties of both. Under
this principle two offices are incompatable where
the incumbent of one has the power . . . of
appointment as to the other office, or to audit
the aCCO""ts of another, or to exercise a
supervision over another.
Attorney General Opinion V-63 (citing Knuckles v. Board of Education
of Bell County, 114 S.W.2d 511 (KY. 1938).
We conclude that positions on the Coordinating Board of the Texas
College and University System and the Tarrant County Junior College
Board are incompatible. Section 61.051 of the Education Code defines
the role of the Coordinating Board of the Texas College and University
System:
(a) The board shall represent the highest
authority in the state in matters of public higher
education.
(b) The board shall define a junior college, a
senior college, a university, and a university
system; provided, that nothing in this section may
be construed to authorize the board to establish
or create any university system or to alter any
university system presently existing by virtue of
statute or the constitution of this state.
(c) The board shall develop and publish
criteria to be used as a basis for determining the
need for changing the classification of any public
institution of higher education and for
determining the need for new public junior
p. 412
Mr. Larry Temple - Page 3 (JM-97)
colleges, public senior colleges, universities, or
university systems.
(d) The board shall classify and prescribe the
role and scope for each public institution of
higher education in Texas, shall make such changes
in classification or role and scope of each
instituti~onas it deems necessary, and shall hear
applications from the institutions for changes in
classification or role and scope. The board shall
make recommendation to the legislature with
respect to maximum enrollment limits for each
public institution of higher education in the
State of Texas and m=Y recommend to the
legislature maximum enrollment limits for any
department, school, degree program, or certificate
program at any such institution.
(e) The board shall review periodically all
degree and certificate programs offered by the
institutions of higher education to assure that
they meet the present and future needs of the
state. The board shall also order the initiation,
consolidation, or elimination of degree or
certificate programs where that action is in the
best interest of the institutions themselves or
the general requirements of the State of Texas, or
when that action offers hope of achieving
excellence by a concentration of available
resources. No new department, school, degree
program, or certificate program may be added at
any institution of higher education except with
specific prior approval of the board. Once
approved, no department, school, degree program,
or certificate program at any institution of
higher education may be expanded to include
subject matter courses that are outside of
approved degree and certificate programs except
with specific prior approval of the board.
(Emphasis added).
In our opinion, the Tarrant County Junior College Board is
subordinate to the Coordinating Board of the Texas College and
University System "in some of its important and principal duties."
The Coordinating Board of the Texas College and University System
"defines a junior college," and subsections (c), (d), and (e) of
section 61.051 clearly empower the Coordinating Board of the Texas
College and University System to directly supervise critical aspects
of the administration of a junior college such as Tarrant County
p. 413
Mr. Larry Temple - Page 4 (JM-97)
Junior College. In our opinion, it would be improper for Dr. Morrison
to serve concurrent terms on the Coordinating Board of the Texas
College and University System and the Tarrant County Junior College
Board.
The incompatibility of these two offices invites application of
the common law doctrine of vacation:
Persons who accept and qualify for offices that
are incompatible with offices they already hold
ipso facto relinquish their prior posts.
Attorney General Opinion MW-170 (1980). --See Purcell vet.Carrillo, 349
S.W.Zd 263 (Tex. Civ. App. - San Antonio 1961, no writ); Ramirez v.
Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ r, ef'd
n.r.e.); Attorney General Opinions bib'-170(1980); H-155, H-117 (1973);
Accordingly, we have determined that Dr. Morrison's career in
public office has progressed as follows: in October 1976 Dr. Morrison
began a term on the Tarrant County Junior College Board; she
relinquished this position when she accepted Governor Clements'
appointment to the Coordinating Board of the Texas College and
University System; she then relinquished her post on the Coordinating
Board of the Texas College and University System when she accepted her
second term on the Tarrant County Junior College Board. This left her
position on the Coordinating Board of the Texas College and University
System vacant.
We conclude that Mr. George Bramblett is the proper holder of the
position on the Coordinating Board of the Texas College and University
System.
SUMMARY
An individual may not serve simultaneously as a
member of the Coordinating Board of the Texas
College and University System and a Junior College
Board. Upon acceptance of a position on one of
the boards, membership on the other board is
relinquished.
- JIM MATTOX
Attorney General of Texas
p. 414
’ .
Mr. Larry Temple - Page 5 (JM-97)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
P
p. 415