Texas Attorney General Opinion: JC-339 Page: 3 of 5
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The Honorable Rodney Ellis - Page 3
The Planning and Zoning Commission of Missouri City consists of nine citizens of Missouri
City who are appointed by the city council for a term of two years. See MISSOURI CITY, TEX.,
CHARTER ART. VIII, 8.01 (1986); see also MISSOURI CITY, TEX., CODE 2-132. The commission
is responsible for final approval of plats under chapter 212, subchapter A of the Local Government
Code. See TEX. Loc. GOV'T CODE ANN. 212.006 (Vernon 1999); MISSOURI CITY, TEX., CODE
82-5(a) (1981) (Planning and Zoning Commission authorized to approve final plat, plan or plat of
a subdivision). In addition, the commission may grant a developer a variance from a rule or
regulation on subdivisions under the circumstances set out in the city code. MISSOURI CITY, TEX.,
CODE 82-7 (1981). In our opinion, members of the Missouri City Planning and Zoning
Commission exercise a sovereign function of the government "for the benefit of the public largely
independent of the control of others" within the Aldine test and are therefore public officers.
Our next consideration is whether members of the Missouri City Planning and Zoning
Commission have powers and duties that are incompatible with the powers and duties of a director
of Harris County Municipal Utility District No. 122. The city attorney states that during the plat
approval process, the Planning and Zoning Commission requires submittal of preliminary utility
plans to assist in determining the feasibility of a proposed development.2 The nature and location
of water and sewer services must be identified, and the plat must show utility easements and
facilities such as utility plants. The city attorney suggests that a member of the Planning and Zoning
Commission who is a director of a MUD may have divided loyalties when the proposed
development is located within the MUD on whose board he serves. In this situation, the Planning
and Zoning Commission is able to control and impose its policies on the MUD, by determining the
manner and placement of the MUD's facilities.
On the basis of Thomas v. Abernathy County Line Independent School District, 290 S.W. 152
(Tex. Comm'n App. 1927, judgm't adopted), we agree with the city attorney that the two offices are
incompatible, and that a member of the Planning and Zoning Commission who also serves on Harris
County Municipal Utility District No. 122 would have divided loyalties in facing decisions that
affected his MUD. We conclude that the common-law doctrine of incompatibility prevents a
member of the Missouri City Planning and Zoning Commission from at the same time serving as
director of a municipal utility district with territory within the boundaries of Missouri City.
Finally, the city council of Missouri City has adopted the following ordinance establishing
the qualifications of members of the Planning and Zoning Commission: "A member of the Planning
and Zoning Commission may not hold another public office while serving as a Planning and Zoning
Commission member." MISSOURI CITY, TEX., CODE 2-136 (2000).
A home-rule city may adopt any ordinance that is not inconsistent with the constitution,
general laws, or its city charter. TEX. CONST. ANN. art. XI, 5 (Vernon 1993). We are not aware
of any provision of the constitution, laws, or the Missouri City charter which is contrary to the city
2Letter from Mary Ann Pruett, City Attorney of Missouri City, to Ms. Susan D. Gusky, Chair, Opinion
Committee (Oct. 11, 2000) (on file with Opinion Committee).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-339, text, 2001; (texashistory.unt.edu/ark:/67531/metapth274648/m1/3/: accessed November 13, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.