Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 15, 2011
The Honorable JoAnne Bernal Opinion No. GA-0898
El Paso County Attorney
500 East San Antonio, Room 503 Re: Whether a member of the El Paso County Ethics
El Paso, Texas 79901 Commission who is a practicing attorney or former
judge may be appointed to serve as the review officer
of a preliminary screening committee (RQ-0978-GA)
Dear Ms. Bernal:
On behalf of the El Paso County Ethics Commission (the "Commission"), you ask whether
a member of the Commission may "serve as the review officer to a Preliminary Screening
Committee if he or she is a practicing attorney or a former judge."l
Chapter 161 of the Local Government Code authorizes El Paso County to create a county
ethics commission. 2 You explain in your request letter that pursuant to chapter 161, the El Paso
County Commissioners Court created the Commission. Request Letter at 1; TEX. Loc. GOV'T CODE
ANN. § 161.051 (West Supp. 2011) (authorizing the commissioners court to create a county ethics
commission). Once the ethics commission has been created, section 161.155 of the Local
Government Code allows an individual to file a complaint with the commission "alleging that
a person subject to the ethics code has violated the ethics code." TEX. Loc. GOV'T CODE ANN.
§ 161. 155(a)(West Supp. 2011). To process the complaint, chapter 161 first requires that a standing
preliminary review committee review the complaint to ensure that it complies with the form and
jurisdictional requirements established under chapter 161. !d. § 161. 158(b)-(c). Your question
relates to the composition of this standing preliminary review committee.
Section 161.1551 of the Local Government Code states, in relevant part:
(b) The standing preliminary review committee consists of:
lLetter ti'om Honorable JoAnne Bernal, EI Paso County Attorney, to Honorable Greg Abbott, Attorney General
of Texas at 1 (June 16, 2011), https:llwww.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").
2See Act of May 27,2011, 82d Leg., R.S., ch. 1163, § 75,2011 Tex. Gen. Laws 3024, 3037 (codified as an
amendment to TEX. Loc. GOy'T CODE ANN. § 161.001). Chapter 161 is applicable only to a county with a population
of 800,000 or more that is located on the international border and had a county ethics board appointed by the
commissioners court prior to September 1, 2009. Id.
The Honorable Jo Anne Bernal - Page 2 (GA-0898)
(1) two members of the commission, determined as provided
by Subsection (c); and
(2) a review officer selected and retained by the commission.
(c) The initial standing preliminary review committee consists of
one commission member, chosen by lot, from the members of the
commission appointed under Section 161.055(a)(1), and one
commission member, chosen by lot, from the members appointed
under Section 161.055(a)(2).
(d) A commission member serves on the standing preliminary
review committee for six months. After the end of a commission
member term on the standing preliminary review committee, service
on the committee rotates so that each position on the commission
serves on the committee, beginning with the initial members of the
standing preliminary review committee chosen under Subsection (c)
and succeeded by the next member on the list as described below:
(1) for the rotation of members appointed under Section
161.055(a)(l), the order of service is the member appointed by
the county judge, followed by the members appointed by the
county commissioners in order of precinct number; and
(2) for the rotation of members appointed under Section
161.055(a)(2), the order of service is the order listed by that
section.
(e) The review officer must be a practicing attorney or former
judge.
!d. § 161.1551(b)-(e).3 You explain that the Commission "seeks to appoint a third Commission
member who is an attorney or former judge" to serve on the preliminary review committee in the
position established by section 161.1551 (b )(2). Request Letter at 2. You ask whether it is permitted
to do so under the statute. Id.
When construing a statute, we generally give effect to the Legislature's intent as expressed
in the plain language of the statute. R.R. Comm 'n of Tex. v. Citizens for a Safe Future & Clean
Water, 336 S.W.3d 619,628 (Tex. 2011), We determine legislative intent from the entire act and
not just isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392,396 (Tex. 2008). While section
3Act of May 13, 2011, 82d Leg., R.S., ch. 160, § 5, 2011 Tex. Gen. Laws 693, 694 (codified as an amendment'
to TEX. Loc. GOy'T CODE ANN. § 161.1551(d)). This citation pertains to all section 161.1551 citations infra.
The Honorable JoAnne Bernal - Page 3 (GA-0898)
161.1551 (b) requires that two of the three members of the standing committee be Commission
members, it does not expressly prohibit the third member from also being a member of the
Commission. TEX. Loc. GOV'T CODE ANN. § 161.1551(b) (West. Supp. 2011). However, by
expressly requiring two Commission members to serve on the committee, the statute could be read
as impliedly prohibiting an additional Commission member from serving as the third member.
See Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265,273 (Tex. 1999) (explaining the maxim
that the inclusion of one provides evidence of intent to exclude others).
Furthermore, section 161.1551 establishes clear instructions to determine which two specific
Commission members will serve on the standing preliminary review committee at any given time.
TEX. Loc. GOV'TCODEANN. § 161. 1551(c)-(d) (WestSupp. 2011). IfaCommission member were
allowed to serve as the third member in the position ofthe review officer, that Commission member
would be unable to follow the rotation outlined in the statute. Id. § 161.1551 (d) (explaining that the
committee rotates in a specific order). The statlite does not contemplate this scenario, suggesting
that the Legislature did not intend for the third member of the preliminary review committee to be
a Commission member. 4 For these reasons, we conclude that a Commission member may not serve
as the review officer to a preliminary review committee under section 161.1551.
4We also note that the Commission's employment of one of its own members in the role of review officer would
raise incompatibility concerns. The common-law doctrine of incompatibility has been held to bar a public employee
from, at the same time, holding a public office which appoints, supervises or controls the employee. See Ehlinger v.
Clark, 8 S.W.2d 666, 674 (Tex. 1928) (Hit 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."); Tex. Att'y Gen. Op. No. GA-0826 (2010) at 2 ("The self-employment aspect of the [incompatibility]
doctrine prohibits a person from holding both an office and an employment that the office supervises.").
The Honorable Jo Anne Bernal - Page 4 (GA-0898)
SUMMARY
The review officer to a preliminary standing review committee
under Local Government Code subsection 161.1551 (b )(2) may not be
a member of the El Paso County Ethics Commission.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee