 j= OFFICE   OF THE ATTORNEY   GENERAL   . STATE OF TEXAS

   JOHN      CORNYN




                                               November 6,200l



The Honorable Michael A. Stafford                           Opinion No. JC-0430
Harris County Attorney
10 19 Congress, 15 th Floor                                 Re: Whether a member of the Texas House of
Houston, Texas 77002- 1700                                  Representatives may be employed as an assistant
                                                            county attorney (RQ-0395-JC)


Dear Mr. Stafford:

         You have requested our opinion as to whether a member of the Texas House of
Representatives may be simultaneously employed as an assistant county attorney. For the reasons
set forth below, we conclude that he may not be so employed.

          The last sentence of article XVI, section 40 of the Texas Constitution       provides:

                  No member of the Legislature of this State may hold any other office
                  or position of profit under this State, or the United States, except as
                  a notary public if qualified by law.

TEX. CONST.    art. XVI, 5 40. Both the courts and the attorney general have consistently          said that an
assistant district attorney is an “employee” rather than an officer. See Powell v. State,          898 S.W.2d
821, 825 (Tex. Crim. App. 1995); Tex. Att’y Gen. LO’s 96-148, 89-082,88-019.          We           believe it is
equally clear that an assistant county attorney does not hold an “office” for purposes of          article XVI,
section 40.

         It does not follow, however, that an assistant county attorney does not hold a “position of
profit.” A “position of profit” has been described as a “salaried nontemporary employment.”       See
Tex. Att’y Gen. Op. No. H-1304 (1978) at 2; see also Begich v. Jeffrson, 441 P.2d 27 (Alaska
1968). Furthermore, a compensated assistant county attorney holds a position of profit “under this
State.” In Willis v. Potts, 377 S.W.2d 622 (Tex. 1964), the Texas Supreme Court specifically
determined that a member of a city council holds an office “under this state.” Likewise, a school
district employee holds a “position of profit under this state.” Tex. Att’y Gen. LO-93-03 1, at 2. In
our opinion, an assistant county attorney who is compensated from county funds unquestionably
holds a “position of profit under this State.” Id.
The Honorable Michael A. Stafford          - Page 2       (JC-0430)




         We note two opinions in which a legislator’s holding of two different positions was held not
to contravene article XVI, section 40, in circumstances somewhat similar to those you posit. In
Attorney General Letter Opinion 93-03 1, this office said that a legislator was not as a matter of law
prohibited from acting in the capacity of “independent contractor” for a school district on a part-time
basis. Id. Similarly, in Attorney General Letter Opinion 95-022, the attorney general held that a
legislator was not precluded from working as an independent contractor on a part-time basis for a
county government. Tex. Att’y Gen. LO-95-022. Both opinions indicated that ultimate resolution
ofwhether the legislator in fact qualified as an “independent contractor” would require the resolution
of factual matters beyond the purview of the opinion process.

        We do not believe, however, that an assistant county attorney may properly be classified as
other than an “employee.” Section 4 1.102 of the Government Code provides that “[a] prosecuting
attorney may empZoy the assistant prosecuting attorneys, investigators, secretaries, and other office
personnel that in his judgment are required for the proper and efficient operation and administration
of the office.“l TEX. GOV’T CODE ANN. 5 41.102(a) (Vernon Supp. 2001) (emphasis added). We
conclude that a state representative may not be employed as an assistant county attorney.




         ‘Although the Harris County Attorney does not prosecute criminal cases, TEX. GOV’T CODEANN. fj 45.201
(Vernon 1988), section 4 1.101 defines “prosecuting attorney” for purposes of chapter 4 1 of the Government Code as
“a county attorney, district attorney, or criminal district attorney.” Id. $ 4 1.101.
The Honorable Michael A. Stafford   - Page 3     (JC-0430)




                                      SUMMARY

                       A member of the Texas House of Representatives            is
              prohibited by article XVI, section 40 of the Texas Constitution from
              simultaneously serving as an assistant county attorney.




                                             JOHN     CORNYN
                                             Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
