                                      OFFICE+hp ATTORNEY GENERAL
                                                        GREG          ABBOTT




                                                        January 24,2003



The Honorable Robert F. Vititow                                       Opinion No. GA-001 5
Rains County Attorney
220 West Quitman                                                      Re: Whether the offices of county commissioner
P.O. Box 1075                                                         and city council member in the same county are
Emory, Texas 75440                                                    incompatible as a matter of law (RQ-058 1-JC)

Dear Mr. Vititow:

        Because a Rains County commissioner accepted a position as council member of a city
located in the county, you ask whether the two offices are incompatible as a matter of law and, if so,
whether the commissioner automatically vacates the first office.’

         Your questions involve the common-law doctrine of incompatibility of public offices. The
doctrine recognizes and prohibits three kinds of conflicts that may arise from holding two public
offices: self-appointment, self-employment, and conflicting loyalties. See Tex. Att’y Gen. Op. Nos.
JC-0199 (2000) JM-1266 (1990). The first is derived from the Texas Supreme Court’s decision in
Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928) in which the court stated that “[i]t is because of the
obvious incompatibility of being both a member of a body making the appointment and an appointee
of that body that the courts have with great unanimity throughout the country declared that all
officers who have the appointing power are disqualified for appointment to the offices to which they
may appoint.” Ehlinger, 8 S.W.2d at 674. “Self-employment” incompatibility is a corollary to the
“self-appointment”      doctrine. It was first applied in Texas in Attorney General Opinion LA-l 14,
which concluded that a public school teacher was ineligible to serve as a member of the board of
trustees of the district in which she was employed as a teacher. See Tex. Att’ y Gen. LA- 114 (1975).

         The situation you ask about involves the third kind of incompatibility - conflicting loyalties
- which was first recognized in Texas in Thomas v. Abernathy County Line Independent School
District, 290 S.W. 152 (Tex. Comm’n App. 1927, judgm’t adopted). In that case, the court held that

                 [t]he offices of school trustee and alderman are incompatible; for
                 under our system there are in the city council or board of aldermen
                 various directory or supervisory powers exertable in respect to school



         ‘Letter from Honorable Robert F. Vititow, Rains County Attorney, to Honorable John Comyn, Texas Attorney
General at 1 (July 23, 2003) (on file with Opinion Committee) [hereinafter Request Letter].




                                An Equal   Employment   Opportunity   Employer   Printed   on Recycled   Paper
The Honorable Robert F. Vititow       - Page 2      (GA-001 5)




                property located within the city or town and in respect to the duties of
                school trustee performable within its limits - e.g., there might well
                arise a conflict of discretion or duty in respect to health, quarantine,
                sanitary, and fire prevention regulations. If the same person could be
                a school trustee and a member of the city council or board of
                aldermen at the same time, school policies, in many important
                respects, would be subject to direction of the council or aldermen
                instead of to that of the trustees.

Thomas, 290 S.W. at 153 (citation omitted).       The court concluded that “[tlhe result of this
incompatibility is that [the officers at issue] vacated the offices of school trustees when they
qualified as aldermen.” Id.

        First, you ask, in essence, whether the office of county commissioner and the office of city
council member of a city located in the county are incompatible as a matter of law or whether this
determination must be made on a case-by-case basis:

                       When [a] current county commissioner subsequently accepts,
               and then concurrently holds, an unpaid council position in a city
               located within the county (and the city is also where the
               commissioner lives and has lived all his life) and neither position is
               subordinate to nor under the control of the other, is there an
               incompatibility “as a matter of law” (i.e., in every instance) or is
               incompatibility a determination which must be done on a case by case
               basis?

Request Letter, supra note 1, at 1.

         The office of county commissioner and the office of council member of a city located in the
county are incompatible as a matter of law. As a general matter, where the geographical boundaries
of two governmental bodies overlap, there is always the potential for conflict, particularly where both
entities collect taxes. See Tex. Att’y Gen. Op. Nos. JC-0557 (2002) at 6 (“where the geographical
boundaries of the school district and the groundwater conservation district overlap, and where both
have taxing authority, a member of the school district board of trustees is barred by the ‘conflicting
loyalties’ aspect of the common-law doctrine of incompatibility from simultaneously serving as a
member of the board of directors of the groundwater conservation district”), JM-1266 (1990),
JM-129 (1984). It is also well established that when two governmental bodies are authorized to
contract with each other, one person may not serve simultaneously as a member of both. See Tex.
Att’y Gen. Op. No. JC-0455 (2002) at 5; see also Tex. Att’y Gen. Op. Nos. DM-311 (1994),
JM-1266 (1990), JM-634 (1987); T ex. Att’y Gen. LO-93-022, LO-88-l 32, LO-88-049.

        In a 1988 letter opinion, this office specifically concluded that the office of county
commissioner and the office of council member of a city in the same county were incompatible as
a matter of law, primarily because of the possibility that the county and the city could contract with
The Honorable Robert F. Vititow      - Page 3      (GA-001 5)




each other. See Tex. Att’y Gen. LO-88-049, at 2. That letter opinion relied on Attorney General
Opinion JM-133, which reached the same conclusion with respect to the offices of county auditor
and city councilman of a city located in the county. That opinion noted that a city is authorized to
enter into agreements with the county in which it is located regarding matters such as regional
planning, public health, and joint recreational facilities and programs. See Tex. Att’y Gen. Op. No.
JM-133 (1984) at 2. After reviewing the statutory duties of county auditors with respect to county
funds and expenditures, the opinion observed that “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” and concluded “that the positions of city councilman of Galveston
and county auditor of Galveston County are incompatible as a matter of law.” Id. Because a county
generally enters into contracts through its commissioners court, the reasoning of Attorney General
Opinion JM-133 applies with equal force to the offices of county commissioner and city council
member.

         Neither a court nor this office has questioned Attorney General Opinion JM-133 or Letter
Opinion 88-049. It still remains the case that numerous statutes authorize city-county agreements
and contracts. See, e.g., TEX. GOV’TCODE ANN. $5 791.003,791.006,791.032       (Vernon Supp. 2003)
(Interlocal Cooperation Act provisions authorizing county-city contracts for services such as law
enforcement, fire protection, and road construction); TEX. HEALTH & SAFETY CODE ANN. §
774.001(a) (Vernon 1992) (county-city agreements for emergency medical services); TEX. LOC.
GOV’T CODE ANN. ch. 323 (Vernon 1999 & Supp. 2003) (county-city agreements for library
services), 5 33 1.008(a) (Vernon 1999) (“A park, playground, museum, or site acquired jointly by a
municipality and county acting in cooperation is under joint management and control.“), ch. 362
(Vernon 1999 & Supp. 2003) (county-city agreements regarding law enforcement assistance).

         Furthermore, contrary to the assertions in your brief, the common law of incompatibility has
not been repealed by article XVI, section 40 of the Texas Constitution or chapter 171 of the Local
Government Code. First, although the article XVI, section 40 prohibition against holding two offices
of emolument contains an exception for county commissioners, see TEX. CONST. art. XVI, 8 40(a)
(“No person shall hold or exercise at the same time, more than one civil office of emolument, except
that of . . . County Commissioner”),        “it does not except those offices from restrictions on
dual-office-holding   based on the cornmon-law doctrine of incompatibility.”          Tex. Att’y Gen.
LO-96-004, at 3. Several recent opinions of this office reiterate this principle. See Tex. Att’y Gen.
Op. Nos. JC-0455 (2002) at 4 (“Because county commissioners are specifically exempted from the
operation of article XVI, section 40, however, they are not prohibited by virtue of that constitutional
provision from serving on the board of directors of a groundwater conservation district. They may,
on the other hand, be barred by common-law incompatibility.“),           JC-0363 (2001) at 2 (“The
common-law doctrine of incompatibility, however, reaches some examples of dual office holding
not prohibited by article XVI, section 40.“) (citing Tex. Att’y Gen. Op. No. JM-203 (1984) and Tex.
Att’y Gen. LO-96-004), JC-0270 (2000) at 3 (“even though a dual office holding situation may be
permitted under article XVI, section 40, opinions of this office conclude that it may yet run afoul of
incompatibility”) (citing Tex. Att’y Gen. Op. No. JM-203 (1984) and Tex. Att’y Gen. LO-96-004).
The Honorable Robert F. Vititow      - Page 4       (GA-0015)




          Gaal v. Townsend, 14 S.W. 365 (Tex. 1890)’ which you cite in your letter, addresses whether
a county commissioner may serve as mayor under article XVI, section 40, see id. at 366 (“Whether
appellant [a commissioner of El Paso County] vacated his office or not by accepting the office of
mayor of Ysleta depends upon the proper construction of section 40 of article 16 of the present
constitution.“).   As this office has noted in the past, Gaal does not address whether the doctrine of
incompatibility prohibits such dual service or consider the relationship between the constitutional
provision and the common law. See Tex. Att’y Gen. LO-96-004, at 2 (“[Tlhe court did not address
the question of incompatible offices. . . . Gaal does not support a conclusion that the express
exception for county commissioners in article XVI, section 40 of the Texas Constitution prevails
over the common-law doctrine of incompatibility.“).

         Nor does chapter 171 of the Local Government Code repeal the common-law doctrine of
incompatibility   of public offices. Chapter 171 governs local officials’ conflicts resulting from
nonpublic interests and repeals the common law with respect to such interests. See TEX. LOC. GOV’T
CODE ANN. ch. 171 (Vernon 1999); see also id. 8 81.002(c) (Vernon Supp. 2003) (subject to the
provisions of chapter 17 1, county commissioner may serve on the governing body of an entity). As
this office has explained, however,

                [clhapter 171 . . . deals with a conflict between the public interest that
                a public officer serves as a member of a governmental body and a
                nongovernmental,      pecuniary interest that the officer may have in a
                specific matter that comes before the governmental body. A conflict
                of duties or functions that makes two offices incompatible is different
                from the problem that is regulated in chapter 171.

Tex. Att’y Gen. LO-95-052, at 5. This office also concluded that “[tlhe common-law doctrine of
incompatibility is still in force, as is evidenced by its recognition in the recent Texas Court of
Criminal Appeals case of State ex rel. Hill v. Pirtle. See 887 S.W.2d 921, 930 (Tex. Crim. App.
1994).” Id. at 6.

          We reaffirm the conclusion of Attorney General Letter Opinion 88-049 that the offices of
county commissioner and city council member in the same county are incompatible as a matter of
law. “The common-law doctrine of incompatibility prohibits an individual from accepting two
positions of public office if the officer will thereby be in a position to promote the interests of one
constituency at the expense of another.” Tex. Att’y Gen. LO 95-029, at 2. The citizens of the county
are entitled to a county commissioner who will evaluate the county’s dealings with the city with only
the county’s interests in mind.

        You next ask, in essence, whether a county commissioner automatically vacates that office
by accepting a position on a city council in the county or whether a court must declare the vacancy:

                        If the position of the Attorney General’s Office is that these
                two positions are always incompatible “i.e., as a matter of law’-
                without regard to their respective duties, local ordinances, statutes,
The Honorable Robert F. Vititow       - Page 5       (GA-0015)




                disclosure of holding office (and intent to hold dual offices) to voters
                before elections are held, whether road work is at the discretion of
                commissioners or a unit road administrator, and abstinence or recusal
                in voting - is the commissioner’s seat vacated as a matter of law or
                must there still be a suit filed in a court of appropriate jurisdiction
                (i.e., a district court) to get a judgment declaring the seat is vacated?

Request Letter, supra note 1, at 2.

          A county commissioner automatically vacates that office once he accepts and qualifies for
 a position on a city council in the county. In Thomas, the court held that “[tlhe result of this
 incompatibility    is that [the officers at issue] vacated the offices of school trustees when they
 qualified as aldermen.” Thomas, 290 S.W. at 153; see also Kuge v. Glen Rose Indep. Sch. Dist. No.
 1,50 S.W.2d 375, 376 (Tex. Civ. App.-Waco 1932)’ afd in part, 84 S.W.2d 1004 (Tex. 1935)
 (“Under the common law, the same person cannot hold two incompatible offices - that is, offices,
 the duties of which conflict, or are inconsistent - and the general rule is that the acceptance and
 qualification for an office incompatible with one then held is a resignation of the former.“). This is
 also the case with dual office holding, where the Texas Supreme Court has held that “[i]f a person
 holding an office is elected or appointed to another (where the two offices cannot be legally held by
 the same person) and he accepts and qualifies as to the second, such acceptance and qualification
 operate, ipso facto, as a resignation of the former office.” Pruitt v. Glen Rose Indep. Sch. Dist. No.
 I, 84 S.W.2d 1004, 1006 (Tex. 1935). Applying this case law, opinions of this office have long
 concluded that an officeholder who accepts and qualifies for a second office that is incompatible
 with the first because of conflicting loyalties automatically resigns as a matter of law. See, e.g., Tex.
 Att’y Gen. Op. Nos. JC-0363 (2001) at 2 (“It is well established that qualification for and acceptance
 of a second office operates as an automatic resignation from the first.“), JM-133 (1984) at 2-3
 (“Persons who accept and qualify for offices that are incompatible with offices they already hold ipso
facto relinquish their prior posts.“), MW-170 (1980) at 2 (same). The first office is vacant by
 operation of law as of the moment the officeholder qualifies for the second office. See id.

         The vacancy therefore exists automatically and may be filled without a judicial declaration.
Under section 87.042 of the Local Government Code, “[i]f a vacancy occurs in the office of county
commissioner, the county judge shall appoint a suitable resident of the precinct in which the vacancy
exists to fill the vacancy until the next general election.” TEX. Lot. GOV’T CODE ANN. 9 87.042
(Vernon 1999). A county judge’s authority under this provision is not contingent upon a judicial
declaration that a vacancy exists.
The Honorable Robert F. Vititow             - Page 6          (GA-0015)




        You also ask several questions2 about the authority of the former commissioner and the
county judge’s appointee if the county judge were to fill the vacancy without a judicial declaration:

                          If a county judge appoints another person as commissioner
                  before the judgment is rendered and the duly elected commissioner
                  continues attending commissioners’ court, which vote counts - that
                  of the duly elected commissioner or that of the appointee?

                            If a county judge appoints another person as commissioner
                   before the judgment is rendered and the duly elected commissioner
                   continues attending commissioners’ court, is the commissioner
                   entitled to salary?

                           If a county judge appoints another person as commissioner
                   before the judgment is rendered, is the appointee entitled to salary?

Request Letter, supra note 1, at 2-3. In answering questions about the authority and rights of the
person appointed to fill the vacancy, we assume that the appointee was qualified to assume office
and that the appointment was not invalid for any reason beyond the scope of this opinion.

         Again, a county commissioner automatically vacates that office once he accepts and qualifies
for a position on a city council in the county. See Thomas, 290 S.W. at 153 (“[t]he result of this
incompatibility     is that [the officers at issue] vacated the offices of school trustees when they
qualified as aldermen”). As is the case with dual office holding, an officer who vacates his or her
office by accepting and qualifying for a second incompatible office does not hold over under article
XVI, section 17 of the Texas Constitution. See TEX. CONST. art. XVI, 8 17 (“All officers within this
State shall continue to perform the duties of their offices until their successors shall be duly
qualified.“); Pruitt, 84 S.W.2d at 1007 (article XVI, section 17 did not apply to an officer who
vacated office by operation of article XVI, section 40); State ex rel. Peden v. Valentine, 198 S.W.
 1006,1007 (Tex. Civ. App.-Fort Worth 1917, writ ref d) (upon acceptance of second, incompatible
office, first office is ipso facto vacated and officer does not hold over under article XVI, section 17);
Tex. Att’y Gen. Op. Nos. JM-589 (1986) at 2 (“an officer, in this instance a justice of the peace, may
divest himself of an office before his successor has qualified by himself qualifying for and entering
upon the duties of another office which he cannot lawfully hold at the same time”); M-627 (1970)
at 4 (officer may divest himself of an office before his successor is qualified by qualifying for



            2Given our answer to your first and second questions, we do not answer your third, fourth and fifth questions.
See Request Letter, supra note 1, at 2 (“No. 3. If the incompatibility must be determined on a case by case basis, is this
determination made by the Attorney General’s Office or is it determined via a suit filed in a court of appropriate
jurisdiction (i.e., a district court) seeking a judgment declaring the positions incompatible and vacated?“), (“No. 4. If
the incompatibility must be determined on a case by case basis by the Attorney General’s Office, once this determination
of incompatibility     is made by the A.G.‘s Office,must there be a suit filed in a court of appropriate jurisdiction (i.e., a
 district court) seeking a judgment declaring the position vacated?“), (“No. 5. If a judgment of a district court is necessary
to establish a commissioner’s seat has been vacated, is a county judge authorized by law to appoint another person as
 commissioner before having a final judgment declaring the seat vacated or must he wait?“).
The Honorable Robert F. Vititow      - Page 7      (GA-001 5)




another office that he cannot lawfully hold at the same time); see also Tex. Att’y Gen. Op. No. DM-
377 (1996) at 3-4 (discussing the application of article XVI, section 17 generally).

         Thus, upon qualifying for the second office, the former commissioner would no longer be
a county commissioner and would not be entitled to vote as commissioner or to be paid for holding
that office. The commissioners court would have no legal basis for paying the former commissioner
a salary and would j eopardize the validity of its official actions by allowing him to vote or otherwise
participate as a commissioner in commissioners court meetings. See, e.g., TEX. LOC. GOV’T CODE
ANN. 8 81.006(a) (V emon 1999) (“Three members of the commissioners court constitute a quorum
for conducting county business except the levying of a county tax.“), (b) (“A county tax may be
levied at any regularly scheduled meeting of the court when at least four members of the court are
present.“), (c) (“A county may not levy a tax unless at least three members of the court vote in favor
of the levy.“); Tex. Att’y Gen. Op. No. JC-0506 (2002) at 4 (discussing when under the Open
Meetings Act persons other than members of commissioners court may attend executive sessions).

          Furthermore, as noted above, when the commissioner vacates that office by qualifying for
the second office, the county judge is authorized to appoint someone to fill the vacancy. See TEX.
Lot. GOV’T CODE ANN. 8 87.042 (Vernon 1999); Ramirez v. Flares, 505 S.W.2d 406,413 (Tex.
 Civ. App.-San Antonio 1974, writ ref d n.r.e.) (after county commissioner automatically resigned
 from office by operation of article XVI, section 65, vacancy existed and was validly filled by county
judge). Once the county judge does so, the appointee will qualify for office upon taking the official
oath and executing a bond. See TEX. LOC. GOV’T CODEANN. § 81.002 (Vernon Supp. 2003). Once
the vacancy is filled and the successor commissioner qualifies for office, the successor commissioner
is entitled to vote as commissioner and to be paid for holding that office. See, e.g., Ramirez, 505
 S.W.2d at 413 (after county commissioner for precinct 1 automatically resigned from office by
operation of article XVI, section 65, person appointed by county judge to fill vacancy qualified for
office of county commissioner by taking, executing, and filing the oath and bond and was entitled
to salary as county commissioner for precinct 1 from date oath and bond were filed).

        Finally, you ask two questions about what would happen if the vacancy were filled and a
court later determined that the commissioner had not vacated the office:

                         If a county judge appoints another person as commissioner
                before the judgment is rendered, the appointee’s votes are used, and
                a district court later makes a finding that the seat was not vacated,
                what are the effects of the actions taken by commissioners’ court
                when the appointee’s vote was the deciding (or pivotal) vote - are
                they valid or invalid?

                        If a county judge appoints another person as commissioner
                before the judgment is rendered, a district court later makes a finding
                that the seat was not vacated and the appointee was improperly
                appointed, and the appointee has been paid by the commissioners’
                court, has the commissioners’ court given away county funds?
The Honorable   Robert F. Vititow    - Page 8       (GA-0015)




Request Letter, supra note 1, at 3. These are highly speculative questions. They would be relevant
only if an action were filed challenging the county judge’s appointment of a person to fill the
vacancy. Moreover, the court would have to conclude, contrary to 27zomas v. Abernathy County Line
Independent School District, the long line of attorney general opinions applying the doctrine of
incompatibility to particular situations, and years of legislative acquiescence, that the offices of
county commissioner and city council member in the same county are not incompatible, and the
court would have to enter judgment removing the county judge’s appointee from office. In the event
of such a highly unlikely scenario, the validity of the appointee’s acts would be a matter for the court
to resolve.
The Honorable Robert F. Vititow    - Page 9       (GA-0015)




                                       SUMMARY

                       The office of county commissioner and the office of council
               member of a city located in the county are incompatible as a matter
               of law. A county commissioner would automatically vacate office by
               accepting and qualifying for the second office. At that point, the
               former commissioner would not be entitled to vote at cornmissioners
               court meetings or to be paid as a county comrnissioner. In addition,
               the county judge would be authorized to appoint someone to fill the
               vacancy. See TEX. Lot. GOV’T CODEANN. 8 87.042 (Vernon 1999).
               That authority is not contingent upon a judicial declaration that a
               vacancy exists. Once the county judge appoints someone to fill the
               vacancy, the appointee will qualify for office upon taking the official
               oath and executing a bond. See id. 5 81.002 (Vernon Supp. 2003).
               Once the successor cornmissioner qualifies for office, the successor
               commissioner is entitled to vote as commissioner and to be paid for
               holding that office. Attorney General Letter Opinion 88-049 is
               affirmed.

                                              Very truly~ours,




                                            - Attom&    Geieral of Texas


BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Deputy Attorney General - General Counsel

RICK GILPIN
Deputy Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
