Municipal Corner

The Attorney General addresses an individual’s service in dual-public offices and the common-law doctrine of incompatibility.
Tex. Att’y Gen. Op. KP-0474 (2024).

The Nueces County Attorney requested an opinion from the Texas Attorney General to determine whether an individual could simultaneously serve on the boards of the Nueces County Hospital District and the Corpus Christi Regional Transit Authority. This opinion examines the common-law doctrine of incompatibility, which prohibits service in multiple public offices in cases of self-appointment, self-employment, and conflicting loyalties.

The common-law doctrine of incompatibility prohibits dual public service in cases of self-appointment and self-employment. The self-appointment aspect of the doctrine disqualifies all public officials from holding offices in which they hold the power to appoint themselves to the office they hold. The self-employment aspect of the doctrine prohibits a person from holding both an office and employment in a job that the office supervises.

With regard to the circumstance involving the Nueces County Hospital District and the Corpus Christi Regional Transit Authority, the Attorney General determined that incompatibility due to self-appointment or self-employment are not at issue, as neither board appoints members to the other, and there were no indications of employment relationships.

The common-law doctrine of incompatibility also prohibits conflicting loyalties. The opinion focused on the conflicting-loyalties aspect, which applies when both positions are public offices that have overlapping jurisdiction. The opinion confirms that members of both boards are considered public officers. The Attorney General noted that overlapping geographical jurisdiction increases the potential for conflicting loyalties and cited certain examples of situations when the doctrine of incompatibility could be implicated, such as taxation powers, eminent domain powers, and overlapping functions. The Attorney General analyzed the powers and duties held by both boards and concluded that a court would likely find that the overlapping functions, contract authority, and eminent domain powers in overlapping territory prohibit an individual from simultaneously serving on both boards due to conflicting loyalties incompatibility, even if the overlapping taxation authority does not create an insurmountable conflict and the threat posed from conflicting loyalties is merely hypothetical.

The Attorney General examines boilerplate public notices concerning executive session and closed meetings with attorneys. Tex. Att’y Gen. Op. KP-0475 (2024).

The Hood County Attorney requested an opinion from the Texas Attorney General to determine the sufficiency of certain public notices used by governmental bodies with regard to the Texas Open Meetings Act (“TOMA”). In particular, the Attorney General examined whether certain boiler-plate language evidencing the possibility that the governmental body may enter closed, executive session satisfied the requirements of TOMA. The Attorney General also advised whether governmental bodies could consult with an attorney in a closed, executive session about retaining the attorney to perform professional legal services.

With regard to notices raising the possibility of a closed, executive session, the Attorney General determined that boilerplate language in a notice that a closed meeting may commence is insufficient under TOMA to alert the general public of the subject to be considered at the meeting. The Attorney General noted TOMA’s broad purpose of enabling public access knowledge of government decision-making, and stated that providing notice that an executive session may occur does not relieve the governmental body of its duty to include in its notice all subjects that will be addressed at the meeting.

In the case at hand, the Hood County Hospital District (the “District”) went into executive session with an attorney at a public meeting to discuss, among other items, the implementation of a voter-approved tax rate election and the possibility of that attorney’s firm representing the District. Neither of these topics were listed as agenda items in the District’s public notice of the meeting. The District’s notice included the following boilerplate language: the “District reserves the right to adjourn into Executive session at any time during the course of this meeting to discuss any of the matters listed”, along with a list of various potential statutory exceptions to TOMA’s openness requirement. The Attorney General believed a court would find that this notice failed to satisfy the requirements of TOMA since the notice contained no agenda item referencing a discussion of a tax rate election or retaining a law firm in relation to that matter. While governmental bodies have the right to enter into a closed executive session, notices lacking any language that could alert the public of the actions that might take place in that executive session likely would violate TOMA.

The Attorney General also analyzed whether governmental bodies could discuss hiring an attorney to perform professional legal services in a closed meeting and determined that a court would likely find that such discussion in a closed meeting would not violate TOMA. While TOMA broadly prohibits governmental bodies from engaging in private meetings, there is an exception for confidential communications that would fall under attorney-client privilege. The Attorney General acknowledged that attorney-client privilege extends where a client, or potential client, consults with an attorney with a view to obtaining professional legal services. Thus, the Attorney General concluded, it’s likely a court would find TOMA authorizes a governmental body to go into closed, executive session for the purpose of consulting with an attorney about potentially retaining the attorney’s services, with the caveat that any discussion must be strictly limited to such subject and may not extend to other unrelated legal matters.

Jake Steen is an Associate in the Firm’s Water, Districts, and Litigation Practice Groups. If you would like additional information or have questions related to these or other matters, please contact Jake at 512.322.5811 or jsteen@lglawfirm.com.