Untitled Texas Attorney General Opinion

OFFICEOFTHEATTORNEY
GENERAL.
STATE
OFTEXAS
JOHN CORNYN
May 26, 1999
The Honorable J. Steven Houston Opinion No. JC-0054
Brewster County Attorney
P.O. Box 323 Re: Whether the Brewster County Attorney may
Alpine, Texas 7983 1 simultaneously serve as an attorney for the City of
Alpine (RQ-0041)
Dear Mr. Houston:
You ask whether you may serve as both Brewster County Attorney and an attorney for the
City of Alpine, which is located in the county. We conclude that because you are employed by the
city and are not an officer, your city service does not implicate either the constitutional bar on dual-
office holding, see TEX. CONST. art. XVI, 5 40, or the common-law doctrine of incompatibility. In
addition, because the Professional Prosecutors Act, TEX. GOV’T CODE ANN. ch. 46 (Vernon 1988
& Supp. 1999), does not apply to the Brewster County Attorney, that Act does not preclude you from
serving as an attorney to a city.
Article XVI, section 40 of the Texas Constitution provides that “[n]o person shall hold or
exercise at the same time, more than one civil office of emolument.” For purposes of this provision,
a person holds an “oftice” as opposed to mere employment if he or she “exercises a ‘sovereign
function of the government largely independent of the control of others.“’ Tex. Att’y Gen. Op.
No. JM-1266 (1990) at 2 (quoting Aldine Indep. Sch. Dist. v. Standlq, 280 S.W.2d 578,583 (Tex.
1955)); see also Ti&y v. Rogers, 405 S.W.2d 220,224 (Tex. Civ. App.-Beaumont 1966, writ ref d
n.r.e.) (applying Aldine test to determine that state college professor did not hold office within
meaning of article XVI, section 40).
We conclude that you do not hold an office in your capacity as attorney for the City of
Alpine. You inform us that you are appointed by and serve at the will of the city council and
that you “perform all services incident to [your] position as directed by the Council.” Letter from
J. Steven Houston, Brewster County Attorney, to Elizabeth Robinson, Chair, Opinion Committee
2 (Mar. 12, 1999) (on file with Opinion Committee) [hereinafter “Request Letter”]. Given that you
serve at the will and under the direction of the city council, you do not exercise a sovereign function
of the city largely independent of the control of others. Thus, in your capacity as attorney for the
City of Alpine, you are not an offtcer for purposes of article XVI, section 40. See Tex. Att’y Gen.
LO-89-58 (concluding that person who served as attorney under the direction and at the pleasure of
a city council did not hold an o&e for purposes of article XVI, section 40); see also Tex. Att’y Gen.
LO-96-148 (concluding that article XVI, section 40 did not preclude elected county attorney from
serving as assistant district attorney since an assistant district attorney is not an offtcer).
The Honorable J. Steven Houston - Page 2 (JC-OOS&)
Accordingly, article XVI, section 40 does not preclude you from serving as both county attorney and
attorney for the City of Alpine.
We note that the common-law doctrine ofincompatibility may also preclude a public officer
from holding another position. This doctrine prohibits an officer from appointing or employing
himself to a position under his control. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
(holding that doctrine of incompatibility disqualifies officers with appointing power “for
appointment to the offices to which they may appoint”); Tex. Att’y Gen. LA-l 14 (1975) at 2-4
(extending the Ehlinger rationale to preclude a person from serving as both school board trustee and
teacher employed by the district). Because an attorney for the City of Alpine is not an appointee or
employee of the Brewster County Attorney, this prohibition does not apply to your situation. See
Tex. Att’y Gen. LO-96-148 (concluding that doctrine of incompatibility prohibition against self-
appointment and self-employment did not apply to county attorney’s employment as assistant district
attorney given that county attorney did not appoint or supervise assistant district attorneys).
Courts, recognizing the potential danger for conflicting loyalties, have also extended the
doctrine of incompatibility to preclude a person from holding “‘two offices where one office might
thereby impose its policies on the other or subject it to control in some other way,“‘Tex. Att’y Gen.
Op. No. JM-1266 (1990) at 4 (quoting Tex. Att’y Gen. Op. No. JM-129 (1984)). See Thomas Y.
Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App. 1927, judgm’t
adopted) (holding that offices of school trustee and city alderman were incompatible given board of
aldermen’s powers over school property and authority to regulate health and safety within city).
This office has concluded, however, that the concern with the potential for conflicting loyalties
does not come into play when one of the two positions is merely an employment. See Tex.
Att’y Gen. Op. No. JM-1266 (1990) at 4. For this reason, we conclude that the doctrine of
incompatibility prohibition against conflicting loyalties does not apply to your situation. See Tex.
Att’y Gen. LO-96-148 (concluding that doctrine of incompatibility prohibition against conflicting
loyalties did not apply to county attorney’s employment as assistant district attorney given that latter
position is merely an employment).
In addition, we note that county attorneys subject to the Professional Prosecutors Act,
TEX. GOV’T CODE ANN. ch. 46 (Vernon 1988 & Supp. 1999), are precluded from engaging in the
private practice of law, including providing legal advice to municipalities. See Tex. Att’y Gen. Op.
No. JC-0034 (1999) at 4 (prosecutor subject to Act may not enter into consultation agreement with
municipality). You inform us that the Brewster County Attorney is not subject to the Professional
Prosecutors Act. Request Letter at 2; see&o TEX. GOV’T CODE ANN. § 46.002 (listing prosecutors
subject to the Act) (Vernon Supp. 1999). Accordingly, you are not precluded from serving as an
attorney to a city by the strictures of that Act.
In conclusion, based on the information provided in your letter, we conclude that neither
article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility
precludes you from serving as bothBrewster County Attorney and an attorney for the City of Alpine.
In addition, because the Professional Prosecutors Act does not apply to the Brewster County
The Honorable J. Steven Houston - Page 3 (JC-0054)
Attorney, that Act does not preclude you from serving as an attorney to a city. In sum, we conclude
that you may serve as both Brewster County Attorney and an attorney for the City of Alpine.
Finally, we note that while this dual service is not precluded by the Texas Constitution or the
common law, there may be particular situations in which ethical conflicts arise. You should, of
course, consult the Texas Disciplinary Rules OfProfessional Conduct with regard to such conflicts.
SUMMARY
A county attorney who is not subject to the Professional
Prosecutors Act, TEX. GOV’T CODE ANN. ch. 46 (Vernon 1988 &
Supp. 1999) may simultaneously serve as an attorney employed at
the will and under the direction of a city council of a city located in
the county.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General