Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 22,2013
The Honorable Ryan Guillen Opinion No. GA-l 026
Chair, Committee on Culture,
Recreation & Tourism Re: Whether a state employee may run for
Texas House of Representatives and assume an elected county office
Post Office Box 2910 (RQ-1128-GA)
Austin, Texas 78768-2910
Dear Representative Guillen:
You ask about "the legality and constitutionality of a state employee running for an
elected county office and assuming such office." 1 You do not specify the position that the state
employee holds or the county office for which the employee intends to run. 2 We therefore
answer your request in general terms. In doing so, we begin with the principle that "'any
constitutional and statutory provision which restricts the right to hold public office should be
strictly construed against ineligibility."' In re Carlisle, 209 S.W.3d 93, 96 (Tex. 2006) (orig.
proceeding) (citation omitted).
We first address the ability of a state employee to become a candidate for an elected
county office. Your request letter does not direct us to any specific state statute that would
prohibit a state employee from running for county office. Government Code section 556.003
recognizes that "[a] state employee has the rights of freedom of association and political
participation guaranteed by the state and federal constitutions except as provided by Section
556.004." TEX. Gov'T CoDE ANN. § 556.003 (West 2012). Section 556.004 prohibits state
employees from using their official authority to "interfere with or affect the result of an election
or nomination of a candidate or to achieve any other political purpose," but it does not prohibit a
'Letter from Honorable Ryan Guillen, Chair, Comm. on Culture, Rec. & Tourism, to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (Apr. 23, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
2
In answering your questions, we presume that by "state employee" you mean a person that is an at-will
employee and not someone that holds civil office. Article 16, subsection 40(a) provides that "[n]o person shall hold
or exercise at the same time, more than one civil office of emolument," except in limited circumstances. TEX.
CONST. art. XVI, § 40(a).
The Honorable Ryan Guillen - Page 2 (GA-1026)
state employee from seeking candidacy for elective office. !d. § 556.004(c). Furthermore, we
find no other Texas statutes that prohibit state employees from running for county office. 3
Under the federal Hatch Act, however, a "State ... employee may not ... if the salary of
the employee is paid completely, directly or indirectly, by loans or grants made by the United
States or a Federal agency, be a candidate for elective office." 5 U.S.C.A. § 1502(a)(3) (West
Supp. 2013). 4 The determination of whether a particular person's employment is subject to the
Hatch Act is a fact question beyond the scope of an attorney general opinion, but we can advise
that under federal law a state employee is prohibited from becoming a candidate for elective
office if the salary of the employee is paid completely by federal funds. See id.; see also Tex.
Att'y Gen. Op. No. JM-957 (1988) at 2 (concluding that whether a particular individual IS
subject to the Hatch Act is a fact question that cannot be resolved by the opinion process).
We next address your question concerning the state employee's ability to assume office
once elected and retain salaries for both positions. You specifically question whether article 16,
subsection 40(b) of the Texas Constitution restricts the state employee from doing so. Request
Letter at 1. Article 16, subsection 40(b) provides:
State employees or other individuals who receive all or part of
their compensation either directly or indirectly from funds of the
State of Texas and who are not State officers, shall not be barred
from serving as members of the governing bodies of school
districts, cities, towns, or other local government districts. Such
State employees or other individuals may not receive a salary for
serving as members of such governing bodies ....
TEX. CONST. art XVI, § 40(b). In analyzing article 16, subsection 40(b), a Texas court has
concluded that "the term 'other local governmental districts' does not include a county" and
therefore does not prohibit a paid state employee from also serving and receiving a salary as a
county commissioner. Cnty. of Maverick v. Ruiz, 897 S.W.2d 843, 847 (Tex. App.-San
Antonio 1995, no writ). On multiple occasions, this office has addressed similar questions
concerning whether elected county officials may also serve as state employees without
renouncing their salaries. See, e.g., Tex. Att'y Gen. L0-98-039, at 1-2 (addressing whether a
legislator may employ a county commissioner); L0-90-039, at 1-2 (addressing whether a county
3
Specific state agencies may have policies that limit their employees' ability to run for office, and this
opinion should not be construed as addressing such policies. See Davis v. City of Dallas, 992 S.W.2d 621, 624-25
(Tex. App.-Dallas 1999, no pet.) (upholding a Dallas City Charter provision that required city employees to forfeit
their position with the city upon becoming a candidate for elective office).
4
Federal regulations define "elective office" as "any office which is voted upon at" a primary, general, or
special election, "but does not include political party office." 5 C.F.R. § 151.101(f), (i) (2013).
The Honorable Ryan Guillen - Page 3 (GA-1026)
attorney may serve as a professor at a state university). Relying on Ruiz, this office has
concluded that a county commissioner and other elected county officials may also serve as state
employees and may be paid for both positions. Tex. Att'y Gen. L0-98-039, at 2. Thus, article
16, subsection 40(b) of the Texas Constitution does not prohibit a state employee from assuming
elected county office, nor does it require the renouncement of the salary for either position.
The Honorable Ryan Guillen - Page 4 (GA-1026)
SUMMARY
Texas statutes do not prohibit a state employee from
becoming a candidate for elected county office. The federal Hatch
Act, however, prohibits a state employee from becoming a
candidate for elective office if the salary of the employee is paid
completely by federal funds.
Article 16, subsection 40(b) of the Texas Constitution does
not prohibit a state employee from assuming elected county office.
Attorney General ofTexas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee