                                 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




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