Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
August 6, 1979
MARK WHITE
Attorney General
Honorable Richard G. Morales, Sr. Opinion No. MW-3 9
County Attorney of Webb County
1810San Bernard0 Re: Whether a person may be
Laredo, Texas 78040 ‘Director of Operations of a CETA
swam administered by the
county and also serve as a city
councilman.
Dear Mr. Morales:
You have asked whether the dual office holding prohibition of the state
constitution is applicable to the Director of Operations for the Webb County
CRTA program who is also a member of the city council for the City of
723 Main. suite 810 Laredo.
HO”*to”.TX. 7ma?
7w2aom~ The Director of Operations has been serving in that capacity since
1974. He was one of three people who were selected by the county
Km Broadway.svite 312 commissioners court to serve as administrators of the county’s CETA
L”bbock TX. m401 program. His salary of $20,500 is paid wholly from federal funds He
mv7.7~5238 reports to the Executive Director of the program. Eighteen discrete areas
of the progratis operations are under the supervision of the Director of
Operations. Among the activities with which he is involved are on-the-job
training, public service projects, youth training and employment, classroom
education, counseling and various support services offered to the
particiBants in the CETA program. In 1978 the Director won a nonpartisan
election to a four year term on the Laredo city council.
With exceptions not relevant here, article 16, section 40 of the Texas
Constitution forbids the, holding of two “civil offices of emolument”
concurrently by the same person. Members of the city council are paid a
salary of $150 a month. Such office, therefore, is clearly one of emolument.
Attorney General Letter Advisory Nos. 154 (1978); 85 (1974); 19 (1973). The
question then becomes whether the Director occupies a “civil office.”
In our opinion the Director of Operations does not occupy an “office.”
See Green v. Stews& 516 S.W.2d 133 (Tex. 1974); Aldine 2nd. Sch. Dist. v.
Gdlev, 280 SW.2 Id 578 (Tex. 1955); Kimbrough v. Barnett, 55 S.W. 120
Ti-0); Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi
p. 113
Honorable Richard G. Morale%.Sr. - Page .Two (Mw-39)
1976, no writ); Tilley v. Rogers, 405 S.W.td 220 (Tex. Civ. App. - Beaumont 1966, writ
ref’d n.r.e.); Cib 303 S.W.2d 485 (Tex. Civ. App. - Beaumont 1957,
writ ref’d n.r.e.l; Attorney General Letter Advisory Nos 85, 81 (1974); Attorney General
Opinions V-308 (1947); G-6458 (1945) (executive officer for the State Board for Vocational
Education is not a civil office holder). The position of Director of Operations does not
possess the elements attributed to an office as discussed in the above cases. The position
is not established by law nor does it have a fixed term. See Tex. Const. art. 16, S 30. The
duties of the position are not defined by law. The Director is not required to take an
official oath nor required to execute a bond. See Tex. Const. art. 16, S 1. Qualifications
for the position are not established by law. Hisremoval from employment need not be
pursuant to the constitutional provisions for the removal of officers. See Aldine Ind. Sch.
Dlst. v. Standley, supra; Tex. Const. art. 5, S 24. No facts have beenpresented which
establish that he exercises any portion of the sovereign authority largely independent of
the control of others. In brief, we believe that the city councilman does not breach the
dual office holding prohibition by serving in his present capacity with the county CETA
program.
Finally, the question of incompatibility must be considered. In Letter Advisory No.
86 it was said:
Whether two offices are incompatible is usually a question of
fact, and incompatibility under the law exists when the faithful and
independent exercise of one office would necessarily interfere with
or control the faithful and independent exercise of the other.
....
[Nlot every conflict of interest, or possibility thereof, results in
legal incompatibility. Conflicts can be avoided on occasion by the
application of intervening statutes, ordinances, or rule% or by
abstention or recusal.. . .
See also Thomas v. Abernathy County Line Ind. Sch. Dist., 290 S.W. 152 (Tex. Comm’n App.
-State v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ). Under
the facts you have presented, there is no apparent incompatibility, however, since the
Attorney General does not find facts in the opinion process, you should examine any other
relevant facts as they develop in light of these cases and the letter advisory to determine
if there Is incompatibility or a conflict. See Attorney General Opinion M-714 (1970)
relating to contractual relationships between the city and the county CETA program.
SUMMARY
A city councilman serving as the Director of Operations for a
county CETA program does not constitute dual office
0&w?=
MARK WHITE
Attorney General of Texas
P. 114
Honorable Richard G. Morales, Sr. - Page Three (m-39)
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by David B. Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 115