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Office of the Attorney General
State of Texas


May 4, 1992

Honorable Gary L. Watkins
Chairman
Higher Education Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Letter Opinion No. 92-8

Re: Whether a community college district board member can be appointed interim chancellor of the same community college district and related question (RQ-357)

Dear Representative Watkins:

You request our opinion about the validity of actions the Alamo Community College District board (the board) recently has taken. We understand that the board decided not to renew the contract of the chancellor, Ivory Nelson. Subsequently, on February 13, 1992, the board members appointed the chairman of the board, Doug Harlan, to serve as interim chancellor for eighteen months. We are advised that Mr. Harlan resigned from his position on the board on March 1, 1992, and took office as the interim chancellor on March 15, 1992. You ask whether Mr. Harlan's appointment is valid. We conclude that it is not. Furthermore, we conclude that the appointment is void as a matter of law.

Under the common-law doctrine of incompatibility, all officers who have the appointing power are disqualified for appointment to offices to which they may appoint. Ehlinger v. Clark, 8 S.W.2d 666, 673-74 (Tex. 1928); St. Louis Southwestern Ry. Co. of Texas v. Naples Indep. School Dist., 30 S.W.2d 703, 706 (Tex. Civ. App.--Texarkana 1930, no writ); Attorney General Opinions JM-934 (1988) at 3; C-452 (1965) at 3; O-410 (1939) at 5-9. As the Texas Supreme Court has stated:

It is because of the obvious incompatibility of being both a member of a body making the appointment and an appointee of that body that the courts have with great unanimity throughout the country declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint.

Ehlinger, 8 S.W.2d at 674. Thus, a public board cannot appoint one of its members to an office or position while that person is still a member of the board. Attorney General Opinion C-452 (1965) at 3. Clearly, then, the board could not appoint Mr. Harlan to fill the position of interim chancellor because Mr. Harlan was a member of the board at the time it made the appointment. As a matter of law, the appointment is void. [Footnote 1] Ehlinger, 8 S.W.2.d at 673-74; St. Louis Southwestern Ry. Co. of Texas, 30 S.W.2d at 706; Attorney General Opinion C-452 (1965) at 4.

You also ask specifically whether the board's actions violate the Texas Non-Profit Corporation Act, V.T.C.S. article 1396-1.01 through 11.01. A state-supported educational district is distinguishable from a nonprofit corporation. Attorney General Opinion JM-852 (1988) at 5 (distinguishing state educational institutions from nonprofit corporations whose purposes may be similar to those of state-supported organizations). Thus, the board's actions do not violate any provision of the Texas Non-Profit Corporation Act.

S U M M A R Y

The board of the Alamo Community College District may not appoint one of its members to the position of interim chancellor. Such an appointment is void as a matter of law.

      Yours very truly,

      Kymberly K. Oltrogge
      Assistant Attorney General
      Opinion Committee


Footnotes

[Footnote 1] The fact that Mr. Harlan resigned his position on the board subsequent to the appointment but prior to taking the office of interim chancellor is irrelevant. Indeed, even if Mr. Harlan had resigned prior to the board's appointment, the appointment would be void unless Mr. Harlan's position on the board had been properly filled by the time the board made the appointment. Attorney General Opinion JM-934 (1988) at 4.


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