Untitled Texas Attorney General Opinion

The Attorney General of Texas
March 5. 1984
JIM MATTOX
Attorney General
Rouorable Lloyd Crias opinion No. .JM-133
Supreme Court Building
P. 0. BOX 12546
chairman
Austin. TX. 76711. 2546 Committee on Labor and Employment Re: Whether an individual may
512,4752501 Relations serve simultaneously as county
Telex 9101674-1367 Texas Eouae of Representatives auditor and city councilman of
Telecopier 512l4750265 P. 0. Box 2910 a city located in that county
Austin. Texas 78769
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709 Dear Representative Criaa:
214/742-6944
You inform us that an individual was elected to the city council
4624 Alberta Ave.. Suite 160
of Galveston, Texas, and subsequently was appointed to be county
El Paso. TX. 79905.2793 auditor of Galveston County. The materials included with your letter
91515332464 to this office indicate that he receives a salary from the county for
hiss services ae auditor but draws uo aalary from the city in his
official capacity. Questions have arisen aa to the propriety of this
d0 Dallas Ave.. Suite 2332
Houston. TX. 77002.6966
person occupying both offices. You ask whether this person is
713/65M666 prohibited by law from simultaneously holding both offices, and if so,
whether the city office is uow vacant. You also ask whether article
9aab. V.T.C.S., or any other law prohibits this person from
606 Broadway. Suite 312
participating in
hbbock, TX. 79401.3479
606/747.5236
(1) decisions involving a city-created tax
reinvestment zone. or
4309 N. Tenth. Suite 6
McA,len. TX. 76501.1665
(2) appointments to the city's park board of
512,682-4547
trustees. or any other matter involving the county
and park board requiring city council action.
2W Win Plaza. Suite 400
San Antonio. TX. 76205.2797 Upon examination of the relevant statutes, we conclude that the
5121225.4191
coavaon law doctrine of incompatibility prohibits one person from
simultaneously occupying the offices of city councilman and county
An Equal OppOrtunityI auditor of a county in which the city is located.
Affirmative Action Employer
,The doctrine of incompatibility prohibits one person from
occupying two offices when one office may "thereby impose ita policies
on the other or subject it to control in some other wav." At tornev
General Opinion JM-i29 (1984); eee Thomas v. Abernathy County Lin;
Independent School District, 29o.W. 152 (Tex. Comm. App. 1927);
State ex rel. Brennan v. Martin, 51 S.W,2d 815 (Tex. Civ. App. - San
Antonio 1932, no writ). In this respect, we observe that city council
members may authorize agreements between the city and county to
p. 562
Honorable Lloyd Crisa - Page 2 (JM-133)
provide for, inter alla. the following: the creation of regional
planning commission8 which are authorized to contract with cities and
counties for the performance of enumerated services. see V.T.C.S. art.
lOllm, 14; the construction and payment of improvements necessary for
the public health and to promote efficient sanitary regulations, see
V.T.C.S. art. 1015, 13; the construction and supervision of joint
recreational facilities and programs. -see V.T.C.S. art. 1015c-1, 93.
The county auditor is appointed pursuant to article 1645,
V.T.C.S., by the district judge(s) having jurisdiction in the county.
This office has previously determined that a county auditor may not be
simultaneously employed as a school teacher and a county probation
officer. Letter Advisory No. 65 (1973). The county auditor is
charged with the
general oversight of all the books and records of
all the officers of the county, district or state.
who may be authorized or required by law to
receive or collect any money, funds, fees. or
other property for the use of, or belonging to,
the county; and he shall see to the strict
enforcement of the law governing county finances.
V.T.C.S. art. 1651. The auditor is additionally authorized to examine
the accounts and orders of the commissioners court, all reports of
collections of money for the county, and cash in the hands of the
county treasurer. V.T.C.S. arts. 1653-1655. Although the auditor may
not independently order the expenditure of county funds, the
commissioners court may not expend funds without the approval of the
county auditor. Smith v. McCoy, 533 S.W.Zd 457, 459 (Tex. Civ. App. -
Dallas 1976, writ dism’d). The auditor in such instances may withhold
approval of payments, though the refusal to approve payments may be
neither arbitrary nor in contravention of law. Id. at 460. See also
Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. G. - Rouaton[l4th
Dist.] 1979. writ ref’d n.r.e.1. Thus, there are many instances in
which the duties of the auditor are likely to conflict with the
performance of city council duties. particularly when the transfer of
funds or property between the city and county is involved. We
conclude therefore that the positions of city councilman of Galveston
and county auditor of Galveston County are incompatible as a matter of
law.
The incompatibility of these two offices invites npplication of
the common law doctrine of vacation:
Persons who accept and qualify for offices that
are incompatible with offices they already hold
ipso facto relinquish their prior posts.
p. 563
Boaorable Lloyd CrfsS - Page 3 (``-133)
Attorney General Opinion MW-170 (1980). See Purcell v. Carrillo. 349
S.W.2d 263 (Tex. Civ. App. - San Antonio-i-961, no writ); Ramirez v.
Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd
n.r.e.); Attorney General Opinions MU-170 (1980); H-155, E-117 (1973).
Accordingly, we conclude that the indlvldual involved here vacated the
office of city councilman when he accepted the position of county
auditor.
SUMMARY
The common law doctrine of incompatibility
prohibit8 a Galveston city council member from
simultaneously serving as Galveston county
auditor.
JIrzJ&th
Attorney General of Texas
TOMGRREN
First Assistant Attorney General
DAVIDR. RICEARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPP.OVRD:
OPINIONCOMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 564