             THE    ATTORNEP         GENER.&L
                       OF    TEXAS




Honorable Charles S. Brack     Opinion No.   JM-1266
Chambers County Attorney
P. 0. Box 1200                 Re:   Whether   a city council
Anahuac, Texas 77514           member may simultaneously serve
                               as a  county special district
                               or school district employee, or
                               as a director of a navigation
                               district    (RQ-2145)

Dear Mr. Brack:

     You have requested our opinion regarding six possible
instances of dual office holding. We will briefly describe
each example before addressing the subject in general terms.

       1. A city council member who receives a $40
       per month expense allowance and who is also a
       county sanitation   and   safety officer,     a
       salaried position appointed by the commission-
       ers court.

       2.  A city council member who receives a $40
       per month expense allowance and who is also a
       salaried employee of     a conservation    and
       reclamation district.

       3.  A city council member who receives a $40
       per month expense allowance and who is also a
       salaried teacher employed by a school dis-
       trict.

       4.  A mayor who receives an $80 per month
       expense allowance and who is also a salaried
       employee of a school district.

       5.  A city council member who receives a $40
       per month expense allowance and who also holds
       a per diem compensated appointment as director
       of a navigation district.




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Honorable Charles S. Brack - Page 2 (JM-1266)




       6. A city council member who receives a $40
       per month expense allowance and who is also a
       salaried employee of a hospital district.

     Article XVI, section 40, of the Texas Constitution
furnishes the primary constitutional    impediment   to dual
office holding. With various   exceptions, it provides   that
"no person  shall hold or exercise at the same time more
than one civil office of emolument.V*    The Supreme    Court
has repeatedly held that the determining    factor in dis-
tinguishing an officer from an employee     is whether    the
individual in question exercises a "sovereign function of
the sovernment . . . largely independent of the control    of
others." Aldine Indeo. School Dist. v. Standlev    280 S.W.2d
578, 583 (Tex. 1955), ouotina Dunbar v. Brazoria'Countv, 224
S.W.Zd 738. 740    ITex. Civ. ADD. - Galveston    1949, writ
ref'd). Eiected officials are ‘ciearly officers, and 'there-
fore the mayor and city council members under consideration
here are officers for purposes of article XVI, section 40.

     As to the other positions  of which you inquire, it is
useful to consider Attorney  General Opinion 3X-499   (1986),
where we held that the chief appraiser of an appraisal
district is an employee rather than an officer: The opinion
turned on the consideration  that the chief appraiser   exer-
cised his responsibilities subject to review and correction
by the appraisal review board, and served at their pleasure.
In our opinion, if an individual may be terminated at will
by a superior body, he can hardly be said to exercise power
"largely independent of the control of others," since the
superior body is in a position to dictate his every act.
Based on these criteria, we may conclude that since each of
the positions in examples 1, 2, and 6 is subject to control
by a superior body, those positions are employments    rather
than offices. Thus, article XVI, section 40, does not bar a
city council member from holding simultaneous positions as a
county sanitation  and safety officer, an employee      of a
conservation and reclamation district,  or an employee of a
hospital district.

     With regard to your third and fourth examples,        a
further inquiry is necessary.  Article XVI, section 40, also
establishes an additional restriction for certain  employees
who serve on the governing bodies of a city or other local
governmental districts.  It provides in pertinent part:

       State employees   or other individuals     who
       receive all or part of their compensation
       either directly  or indirectly from funds of
       the State of Texas and who are not State
       officers, shall not be barred from serving as




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Honorable Charles S. Brack - Page 3 (JM-1266)




       members of the governing bodies of school
       districts,   cities, towns, or other     local
       governmental   districts: provided,   however,
       that such State employees or other individuals
       shall receive no salary for serving as members
       of such governing bodies.

Tex. Const. art. XVI, 5 40. Teachers and other employees of
school districts   receive a portion of their compensation
from funds of the state of Texas. As a result, they may
serve as city council members    or as mayor only if they
receive no salary for such service.        Attorney General
Opinion JM-118   (1983): MW-230 (1980). We must therefore
determine whether the $40 or $80 per month "expense allow-
ance" constitutes a salary. If it constitutes a salary, the
school teacher must renounce it in order to serve on the
city council.  Letter Advisory No. 20 (1973).

     For purposes of the quoted provision      of article   XVI,
section 40, **salary*1does not include legitimate    reimburse-
ment of expenses. - See aenerallv Whitehead     v. Julian,   476
S.W.2d 844   /Tex. 1972)  Iemense    allowance does not make
office a "lucrative office";-salary, fees, or other compen-
sation must be paid): Willis v. Potts, 377 S.W.Zd 622      (Tex.
1964) (token payment of $10 per meeting makes city council
member's office a "lucrative office"); Attorney         General
Opinion MW-450 (1982); MW-230.    In the examples you cite, we
do not believe that the school teacher or other salaried
employee of the school district may receive compensation for
serving as mayor or city council member merely by denominat-
ing a $40 or $80 monthly payment an "expense allowance"
rather than a ltsalary.*' At the very least, the official
should submit an affidavit that the actual expenses he
incurs each month equal or exceed the allowance        payment.
The better practice would be for the official to itemize his
expenses each month in order to demonstrate that the allow-
ance does not exceed expenses        incurred.    See Attorney
General Opinion H-992 (1977).

     As to your fifth example, a director of a navigation
district holds an office, and since, by your description, he
receives a per diem compensation for such service, he may
avoid the prohibition  of article XVI, section 40, only if
his city council position is not one of emolument.  The same
test applied to the school district employees in your third
and fourth examples is applicable here:     if the "expense
allowance" can be fairly demonstrated   to constitute   reim-
bursement for actual expenses, the constitutional  provision
does not bar the city council member   from also serving as
director of a navigation district.




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    Honorable Charles S. Brack - Page 4 (JM-1266)




          We must also consider the common law doctrine          of
     incompatibility as applied to the positions     of which you
     inquire.    That doctrine prohibits    one individual     from
     occupying "two offices where one office might thereby impose
     its policies on the other or subject it to control in some
     other way."    Attorney General Opinion JM-129    (1984); see
     &&lg Attorney General Opinion JM-133 (1984). The aspect of
     the doctrine   relevant here, sometimes    called the "con-
     flicting loyalties" type of incompatibility to distinguish
     it from the "self-employment I0type, see Letter Advisory   No.
     114 (1975), has never been held to apply to a situation     in
     which one position is an office and the other an emDlovment.
     Indeed, the original Texas case involving    incompatibility,
     Thomas v. Abernathv Countv Line IndeD. School Dist., 290
     S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted),    involved
     the gffices of city alderman and school trustee.     On other
     occasions, we have held incompatible the offices of communi-
     ty college trustee and county commissioner, Attorney General
.~.--Opinion JM-129-;;'and the offices of county auditor and city~
     council member. Attorney General Opinion JM-133; see also
     Letter Advisory No. 149 (1977).

         Applying these principles   to your six examples,     we
    believe it is clear that incompatibility has no application
    to numbers l-4 or to number 6, since in each instance one of
    the positions is a mere employment.    As to the fifth exam-
    ple, it is equally apparent that both positions are offices.
    If the geographical  boundaries of the navigation    district
    overlap with those of the city of which the individual is a
    council member, there is at least a potential for conflict-
    ing loyalties. We cannot say as a matter of law, however,
    that these positions are incompatible.   If, for example, the
    two political subdivisions contract with each other, there
    probably exists sufficient potential for conflicting   loyal-
    ties as to render the two positions incompatible.   Again, if
    the navigation district has and exercises taxing authority,
    the potential for conflict  is probably insurmountable.    We
    conclude that the common law doctrine of incompatibility
    may, but does not as a matter of law, prohibit a single
    individual from serving both as a member of a board of
    directors of a navigation district and as a city council
    member of a municipality where the territory of the district
    and municipality overlap.

                           SUMMARY

               Neither article XVI, section 40, of the
            Texas Constitution  nor the common law doc-
            trine of incompatibility bars a city council
            member  from simultaneously   serving as   a
            county sanitation   and safety officer,   an



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Honorable Charles S. Brack - Page 5 (JM-1266)




        employee of a conservation    and reclamation
        district,   or an employee of a       hospital
        district. A mayor or city council member     iS
        not barred by incompatibility     from simul-
        taneously   serving as an employee of        an
        independent   school district, but he must
        renounce any salary or compensation         for
        serving as mayor or city council member.       A
        city council member is barred by article XVI,
        section 40, from serving as a director of a
        navigation   district unless the     allowance
        received for serving as council member can be
        demonstrated to constitute reimbursement    for
        expenses only.     Common-law  incompatibility
        may, depending on the circumstances, bar one
        individual from serving both as city council
        member and as director of a navigation    dis-
        trict, but it does not do so as a matter     of
        law.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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