Case Information
*1 THE ATTORNEY GENERAL OF 'TEXAS
August 23, 1989 Honorable Rene Guerra Opinion No. ~~-1887 Criminal District Attorney
Hidalgo County Courthouse Re: Whether the common law doc- Edinburg, Texas 78539 trine of incompatibility may be
overcome by a charter provision of a home rule city which speci- fically permits such dual office holding (RQ-1675) Dear Mr. Guerra:
you have requested our opinion as to whether a home rule city may overcome the common law doctrine of incompat- means of a provision in its city charter. ibility The charter of the City of Alamo, a home rule city, provides in pertinent part in article 1.1, section 5:
[T]he Mayor, with the approval of at least two (2) of the four (4) Commissioners, may serve as City Manager at a salary that is set and approved by at least two (2) of the four (4) Commissioners; provided that if he/she is serving as City Manager, he or she will not receive compensation for services as Mayor.
Article IV, section 1, of the charter provides in pertinent part:
The City Manager shall be responsible to the Board of Commissioners for the efficient administration of the affairs of the City of Alamo and shall hold office at the pleasure of the Board of Commissioners. The City Manager may be removed from office by majority vote of all the members of the Board of Commissioners. The action of the Board of Commissioners suspending or removing the City Manager shall be final.
Thus, as you indicate, the charter specifically makes the city manager accountable to the board of commissioners, of which the mayor is a member. On the other hand, the charter also specifically permits "the mayor, with the approval of *2 at least two of the four commissioners,VV to "serve as** city manager.
Absent the language of the city charter provision, it is abundantly clear that a single individual may not serve simultaneously in two positions in which one is accountable to the other. Letter Opinion 89-57 (1989); Letter Advisory No. 114 (1975). This conclusion is based upon the long- standing common law doctrine of incompatibility. &= Thomas V. 2 ernat Co nt Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgmt adopted). The question here is whether a city charter provision may overcome this common-law rule.
Under the home rule amendment to the Texas Constitution, article XI, section 5, a home rule city has all those powers which are not inconsistent with the constitution or general laws of the state. &lDha 411 S.W.2d 417 (Tex. Civ. 1, App.), cert., 389 U.S. 1005 (1967). A home rule city need not look to the legislature for a particular grant of power. Rather, it need concern itself only with limitations imposed on its power. Lower Colorado River Auth. v. Citv of San, 523 S.W.2d 641, ( 543 ITex. 1975). Furthermore. any limitation thereon must . appear with unmistakable clarity. Id. at 645.
The only such qqlimitationfi' which might restrict the city's authority in this instance is section 5.001 of the Civil Practices & Remedies Code, which provides:
The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state.
In our opinion, this provision is not really a *'limitation." It does not indicate a legislative intent to make common law incompatibility the absolute law in this state, but only in the absence of other authority to the contrary. In this instance, we believe that a city charter provision which is not contrary to a svecific state law, or which does not purport to act in a field which has been fully occupied by the legislature, is itself sufficient to overcome the common law.
In Dal1 as R . v 8 Terminal Co. v. Bankston, 33 S.W.2d 500 (Tex. Civ. App. - Dallas 1930), rev'd on other srounds, 51 S.W.2d 304 (Tex. Comm'n App. 1932), holding approved, several ordinances required that a streetcar operator, inter *3 Honorable Rene Guerra - Page 3 (JM-1087)
gJ,.&& keep a "vigilant watch" and that he be prepared to stop in the shortest time and space possible upon any appearance of danger. The ordinances were somewhat broader than the standard of care required common law. Nevertheless, the court, citing Citv of Dallas v. Gila, 199 S.W. 1144 (Tex. Civ. APP. - Dallas 1917, writ ref'd), held that if an ordinance is passed under constitutional and statutory authority, it repeals the common law in all respects in which inconsistencies exist. DB, suvra, at 502; see M, 564 S.W.2d 471 (Tex. Civ. APP. - Dallas 1978, no writ). But Gv.f enusa Houston, 10 S.W.2d 772 (Tex. Civ. App. - Galveston 1928, no writ) (city ordinance imposing liability on owner of a rental automobile void because it contravenes common law, questioned by Supreme Court in citv of COrDUS Christi v. Texas Driverless C o., 190 S.W.2d 484 (Tex. 1945)).
Likewise, in the situation you pose, the Alamo city charter has specifically provided for the contingency that a single individual may serve simultaneously as both mayor and city manager. The conditions necessary for the holding of both positions are detailed in the charter, as well as provisions for the mayor's removal as city manager. In this instance, we believe that the charter is sufficient to over- come the common law doctrine of incompatibility. As a result, there is no impediment to the mayor of Alamo holding the position of city manager under the circumstances provided in the charter.
SUMMARY Under the terms of the charter of the City of Alamo, the mayor may, in certain circum- stances, simultaneously serve as city manager. The common law doctrine of incom- _ patibility does not prevail over the charter provision. I JIM MATTOX - Attorney General of Texas MARY KELLER
First Assistant Attorney General
LQU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General