                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                  July 14, 2008



Mr. Sidney "Buck" LaQuey                                  Opinion No. GA-0645
Grimes County Auditor
Post Office Box 510                                       Re: Whether a county commissioner may be paid
Anderson, Texas 77830                                     while working for the county sheriff in the jail
                                                          division (RQ-0661-GA)

Dear Mr. LaQuey:

       You state that a Grimes County Commissioner "has been working and received a salary paid
by the jail division of the sheriffs department in addition to receiving the salary as" county
commissioner.! You ask whether the commissioner may be paid for her work in the jail division.
Request Letter, supra note 1, at 1. You believe Attorney General Opinion JC-0061, which construes
Local Government Code section 81.002 to prohibit a county commissioner from being employed
by the county, suggests that the answer is "no." See id.; see also TEX. Loc. GOV'T CODE ANN.
§ 81.002(a) (Vernon 2008); Tex. Att'y Gen. Ope No. JC-0061 (1999).

       Local Government Code section 81.002(a) requires a county commissioner, "[b]efore
undertaking the duties of' the office, to

                 take the official oath and swear in writing that the person will not be
                 interested, directly or indirectly, in a contract with or claim against
                 the county except:

                        (1) a contract or claim expressly authorized by law; or

                        (2) a warrant issued to the judge or commissioner as a fee of
                  office.

TEX. Loc. GOV'T CODE ANN. § 81.002(a) (Vernon 2008) (emphasis added).

      As Opinion JC-0061 notes, "[s]ection 81.002 states a strict rule against conflicts ofinterest."
Tex. Att'y Gen. Ope No. JC-0061 (1999) at 2. While Local Government Code chapter 171 has


          ILetter from Sidney "Buck" LaQuey, Grimes County Auditor, to Honorable Greg Abbott, Attorney General of
Texas, at 1 (Dec. 31, 2007) (on file with the Opinion Committee, also available at http://www.texasattomeygeneral.gov)
[hereinafter Request Letter].
Mr. Sidney "Buck" LaQuey - Page 2                     (GA-0645)




repealed section 81.002 with respect to a county commissioner's interest in business entities and real
property, Opinion JC-0061 concludes that section 81.002 remains viable with respect to a county
commissioner's employment relationship with the county. See ide at 3; see also TEX. Loc. GOV'T
CODE ANN. § 171.004(a) (Vernon 2008) (generally requiring a local public official with a substantial
interest in a business entity or real property, before a vote on a matter involving the business entity
or real property, to disclose the interest and abstain from voting).

        Section 81.002 precludes a county commissioner from simultaneously being employed by
the county because a compensated county employee is "interested, directly or indirectly, in a contract
with or claim against the county." Tex. Att'y Gen. Ope No. JC-0061 (1999) at3 (quoting TEX. Loc.
GOV'T CODE ANN. § 81.002(a) (Vernon 1988)); see also Starr County v. Guerra, 297 S.W.2d 379,
380 (Tex. Civ. App.-San Antonio 1956, no writ) (indicating that the oath provision precludes a
county commissioners court from employing a commissioner). Because an ambulance driver in the
county at issue in JC-0061 was a county employee and paid with county' funds, the opinion
determines that the county may not pay a county commissioner for employment as an ambulance
driver. See Tex. Att'y Gen. Ope No. JC-0061 (1999) at 3-4.

        In the situation you describe, the county commissioner is compensated for work performed
in the jail division of the sheriffs office, and the commissioner thus has entered an employment
relationship with the county. See Request Letter, supra note 1, at 1. An employee of a county
sheriffs department is a county employee paid with county funds. Cf Tex. Att'y Gen. Ope No.
GA-0465 (2006) at 3 (stating that many counties employ one person to serve as both jailer and
deputy sheriff); Tex. Att'y Gen. Ope No. GA-0322 (2005) at 3 n.5 (stating that a sheriffs deputies
"are county employees paid by county funds"); Tex. Att'yGen. Ope No. S-96 (1953) at3 (concluding
that a deputy sheriff is a county employee for purposes ofthe Workmen's Compensation Act); Tex.
Att'y Gen. LO-93-62, at 2 (stating that both deputy sheriffs and county jailers "perform their duties
on behalfofthe sheriff').2 Indeed, you tell us that the county is paying the commissioner for services
as commissioner and with the sheriff s department "on one check from the county." Request Letter,
supra note 1, at 1.

        By becoming a compensated county employee, the commissioner has become interested in
a contract with or claim against the county for purposes of Local Government Code section
81.002(a). See TEX. Loc. GOV'TCODEANN. § 81.002(a) (Vernon 2008); Tex. Att'y Gen. Ope No.
JC-0061 (1999) at 3. Consequently, under section 81.002(a) a county commissioner may not be
employed with the county sheriff s department unless the commissioner's contract or claim is within
either ofthe exceptions to section 81.002(a). See TEX. Loc. GOV'TCODEANN. § 81.002(a) (Vernon
2008); Tex. Att'y Gen. Ope No. JC-0061 (1999) at 3. You do not suggest that the contract or claim
at issue here is within either of the exceptions to section 81.002(a), and we do not find that it is.


         2See also TEX. Loc. GOV'T CODE ANN. § 85.005(a) (Vernon 2008) (authorizing a sheriff, "with the approval
of the commissioners court," to employ guards "to ensure the safekeeping of prisoners" and jail security); id. §§
151.001(a), .002, .003 (providing generally that a county officer may appoint positions after the commissioners court
has approved the positions); id. § 152.001 (authorizing the county commissioners court to set a county employee's
compensation, salary, and expenses). See generally Tex. Att'y Gen. OPt No. 0-2444 (1940) at 3-4 (describing the
process by which a sheriff may appoint an employee with the commissioners court's approval).
Mr. Sidney "Buck" LaQuey - Page 3                   (GA-0645)




         Because an employee of the sheriff s department is a county employee, the situation about
which you ask is distinguishable from that addressed in Attorney General Opinion GA-0360. See
Tex. Att'y Gen. Ope No. GA-0360 (2005) at 1. That opinion considers whether the San Jacinto
County Auditor may work as an accountant for the San Jacinto County Emergency Services District.
See ida An emergency district, created under article. III, section 48-e and Health and- Safety Code
chapter 775, is a special district and "a political subdivision ofthe state." TEx. CaNST. art. III, § 48-e;
TEX. HEALTH & SAFETY CODE ANN. § 775.031(a) (Vernon Supp. 2007); see also Tex. Att'y Gen.
Ope No. GA-0360 (2005) at 2-3. A single-county emergency services district is governed by a board
of commissioners that, although the members are appointed by the county commissioners, operates
independently of the commissioners court. See Tex. Att'y Gen. Ope No. GA-0360 (2005) at 2; see
also TEX. HEALTH & SAFETY CODE ANN. § 775.034(a)-(b) (Vernon Supp. 2007) (stating that board
members are appointed to serve two-year terms). And an emergency services district may impose
and collect taxes. See TEX. HEALTH & SAFETY CODE ANN. § 775.031(a)(5) (Vernon Supp. 2007);
see also Tex. Att'yGen. Ope No. GA-0360 (2005) at3. The San Jacinto County Emergency Services
District is, consequently, separate from the county such that an employee ofthe emergency services
district would not be an employee of the county.

        You indicate that, in reliance on Letter Opinion 97-081, the county attorney implicitly has
approved the county commissioner's employment with the sheriffs department. 3 Letter Opinion
97-081 addresses only the constitutional prohibition of dual office holding and the common-law
doctrine ofincompatibility and con9ludes that neither prohibits a county commissioner from serving
as a reserve deputy sheriff. See Tex. Att'y Gen. LO-97-081, at 1; see also TEX. CaNST. art. XVI,
§ 40 (prohibiting the simultaneous holding by one person of "more than one civil office of
emolument"); Tex. Att'y Gen. Ope No. GA-0569 (2007) at 1-2 (summarizing the doctrine of
incompatibility). Letter Opinion 97-081 does not consider the applicability of Local Government
Code section 81.002(a), as Opinion JC-0061 does. See Tex. Att'y Gen. LO-97-081, at 1-2; cf Tex.
Att'y Gen. Ope No. JC-0061 (1999) at 2-3. While Letter Opinion 97-081 correctly determines that
simultaneously holding positions as a county commissioner and a sheriff s deputy does not implicate
the constitutional dual office holding prohibition or the common~law doctrine of incompatibility,
Local Government Code section 81.002(a) forbids a county commissioner from becoming a
compensated county employee. See TEX. Lac. GOV'T CODE ANN. § 81.002(a) (Vernon 2008); Tex.
Att'y Gen. Ope No. JC-0061 (1999) at 3; Tex. Att'y Gen. LO-97-081, at 1.

        In conclusion, the commissioner about whom you ask may not be paid for working in the
sheriff s jail division. As this office stated in Opinion JC-0061, because section 81.002 precludes
this employment relationship, "we need not address whether the arrangement violates the doctrine
of common-law incompatibility ...." Tex. Att'y Gen. Ope No. JC-0061 (1999) at 4. And we
recognize that this construction of section 81.002 vis-a.-vis Local Government Code section
171.004(a) creates an anomaly in that, under section 171.004(a), a county commissioner may benefit
from a contract with the county that involves a business entity or real property in which the



         3See Letter from Sidney "Buck" LaQuey, Grimes County Auditor, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (Jan. 7,2008) (on file with the Opinion Committee).
Mr. Sidney "Buck" LaQuey - Page 4             (GA-0645)



commissioner has a substantial interest so long as the commissioner complies with chapter 171 's
requirements, yet section 81.002 prohibits the commissioner from entering an employment
relationship with the county. But this is a policy matter for the Legislature-and not this office-to
consider. Cf Tex. Att'y Gen. Op. No. GA-0630 (2008) at 4 (suggesting that policy concerns are for
the Legislature to address).
Mr. Sidney "Buck" LaQuey - Page 5           (GA-0645)




                                     SUMMARY

                     Local Government Code section 81.002(a) precludes a county
              commissioner from being paid for employment in the county sheriff s
              department.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
