                              ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                              August l&2005



The Honorable Bart E. Medley                         Opinion No. GA-0350
Jeff Davis County Attorney
Post Office Box 201                                  Re: Whether the county attorneys of Jeff Davis and
Fort Davis, Texas 79734                              Presidio counties may, by “reciprocal arrangement,”
                                                     appoint each other assistant county attorneys of their
                                                     own counties (RQ-03 19-GA)

Dear Mr. Medley:

         You ask whether the county attorneys of Jeff Davis and Presidio counties may, by “reciprocal
arrangement,” appoint each other assistant county attorneys of their own counties.’ You state: “Jeff
Davis County and Presidio County are neighboring counties in far West Texas. Each county has a
relatively small tax base and each county attorney’s office is limited to a single attorney. Neither
county now has, nor to my knowledge has ever had, an assistant county attorney.” Request Letter,
supva note 1, at 1; see also UNITEDSTATESCENSUS BUREAU,U.S. DEP’T OF COMMERCE,2000
CENSUSOFPOPULATION:TEXASQUICKFACTS(population of Jeff Davis County is 2,207), available
at http://quickfacts.census.gov/qfd/states/48/48243.html;         id. (population of Presidio County is
7,304), available at http://quickfacts.census.gov/qfd/states/48/48377.html.

         You indicate that, when one of the county attorneys is absent, the neighboring county
attorney typically is appointed attorney pro tern under article 2.07 of the Code of Criminal Procedure.
See Request Letter, supra note 1, at 1. Under article 2.07, a judge may appoint an attorney pro tern
to perform the duties of a prosecuting attorney during any periods in which the regular prosecutor
“is disqualified to act in any case or proceeding, is absent from the county . . . , or is otherwise
unable to perform the duties of [the] office.” TEX. CODE GRIM.PROC.ANN. art. 2.07(a) (Vernon
2005). If the appointed attorney pro tern is also a prosecutor in his or her own right, “the duties of
the appointed office are additional duties of [the] present office,” and the attorney is not entitled to
additional compensation for serving as attorney pro tern. Id. art. 2.07(b). You aver that the process
by which an attorney is appointed attorney pro tern is “cumbersome, as it requires a court [to
appoint] the neighboring county attorney even to cover a single hearing in the case during a
temporary absence of the county attorney with jurisdiction.” Request Letter, supra note 1, at 1. You



        ‘LetterfromHonorable Bart E. Medley,JeffDavis CountyAttorney,to HonorableGreg Abbott,Texas Attorney
General, at 1 (Feb. 11, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx,us)
[hereinafterRequest Letter].
The Honorable Bart E. Medley - Page 2          (GA-0350)




also are concerned that, once the appointment is made, the attorney pro tern may not, without a court
order, “return the case to the county attorney upon [the county attorney’s] return.” Id.

         You therefore ask whether, as an alternative to the attorney pro tern process, “the Jeff Davis
County Attorney and the Presidio County Attorney [may] enter into a reciprocal arrangement
whereby the Jeff Davis County Attorney would also be appointed Assistant Presidio County Attorney
and vice versa.” Id. An assistant county attorney may perform all of the county attorney’s duties.
See TEX. GOV’T CODEANN. 3 41.103(b) (Vernon 2004); see also id. 9 45.002(a) (stating that an
assistant county attorney must satisfy the same qualifications as the appointing county attorney).
You explain:

                        This arrangement would eliminate the need to appoint a
               special prosecutor to cover simple hearings arising during the
               temporary absence of the county attorney for vacation, sick leave,
               etc.[] It would also eliminate the need to obtain permission from the
               court for the neighboring attorney to withdraw from the case once the
               county attorney returns.

                       One condition of such an arrangement would be that the
               appointment as Assistant County Attorney would only extend to
               criminal and juvenile matters[] and would exclude any civil duties,
               such as reviewing contracts or advising the Commissioners Court.

Request Letter, supra note 1, at 2. You further aver that the assistant county attorneys “would be
entirely without compensation or benefits of any kind, other than expense reimbursement.” Id. You
raise, as two possible obstacles, article XVI, section 40 of the Texas Constitution, which generally
prohibits dual office-holding, and the common-law doctrine of incompatibility.

        Before we address the dual office-holding and incompatibility issues you raise, we examine
the county attorney’s authority to appoint an assistant vis-a-vis the commissioners court.

         Both the county commissioners court and the county attorney play a role in determining
whether to establish and fill the position of an assistant county attorney. While a county attorney is
authorized to employ assistants as necessary to properly operate and administer the office, the officer
must apply to the commissioners court for authority to make the appointments.          See TEX. GOV’T
CODEANN. 0 41.102(a) (Vernon 2004) (authorizing a prosecutor to employ office personnel); TEX.
LOC. GOV’T CODEANN. 3 15 1.001(a) (Vernon 1999) (requiring a county officer who needs “the
services of deputies, assistants, or clerks” to apply to the commissioners court); see also TEX. LOC.
GOV’T CODEANN. 5 151.002 (Vernon 1999) (requiring a commissioners               court to adopt an order
authorizing an officer to appoint a specified number of employees); Renfro v. Shropshire, 566
S.W.2d 688,690-91 (Tex. Civ. App.-Eastland 1978, writ refd n.r.e.) (explaining the statutory basis
for the tension between the officer’s and the commissioners             court’s authority).   Once the
commissioners court has approved a position, the commissioners court has “no power or authority
to decide, [question,] control or veto who the [officer] decides to hire, retain, employ, deputize, or
The Honorable Bart E. Medley      - Page 3      (GA-0350)




appoint.” State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 929 (Tex. Crim. App. 1994); see TEX. LOC.
GOV’T CODEANN. $ 15 1.004 (Vernon         1999) (stating that neither the commissioners court nor an
individual commissioner may “attempt to influence the appointment of any person to [a] . . . position
authorized by the court”); Renfro, 566 S.W.2d at 691-92 (stating that the selection of a county
officer’s personnel is not “county business” and thus not subject to the commissioners        court’s
oversight).

         The commissioners court’s and the county attorney’s respective authority is intertwined not
only with respect to the decision to fill a position, but also with respect to the compensation the
appointee will receive. Subject to the county commissioners court’s approval, the county attorney
sets an assistant’s salary. See TEX. GOV’T CODEANN. 4 41.106(a) (Vernon 2004). The assistant
county attorney also may receive “actual and necessary travel expenses incurred in the discharge of’
the assistant’s duties, “not to exceed the amount fixed by the prosecuting attorney and approved by
the [county] commissioners court.” Id. 0 41.106(b).

       Consequently, a county attorney may not appoint an assistant county attorney unless the
commissioners    court has approved creating a position for an assistant county attorney.        The
commissioners court’s approval is required even if the assistant will not receive a salary, C’$ Tex.
Att’y Gen. Op. No. JM-102 (1983) at 2 (stating that a commissioners court must approve each
deputy sheriff or constable position “whether compensated or not”).

        In partial answer to your question, therefore, the Jeff Davis and Presidio county attorneys may
not enter into this reciprocal arrangement unless each county commissioners court has approved the
creation of the assistant county attorney position. The appropriate commissioners court also must
approve reimbursing the assistant county attorney’s travel expenses. Once the position is approved,
however, the county attorney may appoint an assistant without the influence of the commissioners
court.

         Assuming that the county attorneys obtain the requisite commissioners courts’ approvals, we
turn to the dual office-holding and incompatibility concerns you raise. Article XVI, section 40(a)
does not prohibit a county attorney from appointing a second county attorney as the first county
attorney’s assistant. Under article XVI, section 40(a), “[n]o person shall hold or exercise at the same
time, more than one civil office of emolument.”         TEX. CONST. art. XVI, 0 40(a). Unless both
positions are civil offices of emolument, article XVI, section 40(a) is “inapplicable on [its] face.”
Pirtle, 887 S. W.2d at 93 1. An assistant county attorney is a public employee, not an officer, as the
assistant is hired by the county attorney and serves at the county attorney’s will. See TEX. GOV’T
CODE ANN. $8 41.102(a), .105 (Vernon 2004) (authorizing a prosecuting                attorney to employ
assistants and to remove the assistants at will); Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,
583 (Tex. 1955) (declaring that a public officer, as opposed to a public employee, exercises a
sovereign function of the government “‘largely independent of the control of others”‘) (quoting
Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston               1949, writ refd)),
disapproved on other grounds, Nat ‘I Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690
(Tex. 1968); Tex. Att’y Gen. LO-89-058, at 1 (determining that an assistant county attorney is not
a public officer for purposes of article XVI, section 40).
The Honorable Bart E. Medley      - Page 4      (GA-0350)




         In addition, the two positions are not incompatible.          The common-law        doctrine of
incompatibility “recognizes and prohibits three kinds of conflicts that may arise from holding two
public offices: self-appointment,      self-employment, and conflicting loyalties.” Tex. Att’y Gen.
Op. No. GA-0307 (2005) at 3. Neither self-appointment           incompatibility nor self-employment
incompatibility apply here because the county attorneys are not considering appointing themselves
to a position. See id. at 3-4; see also Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928) (noting “the
obvious incompatibility of being both a member of a body making the appointment and an appointee
of that body”); Tex. Att’y Gen. LA-l 14 (1975) at 8 (extending self-appointment incompatibility to
the self-employment context). Conflicting-loyalties incompatibility, which applies if “a conflict of
discretion or duty” might arise between two offices, also does not apply here because an assistant
county attorney does not hold an office. Thomas v. Abernathy County Line Indep. Sch. Dist., 290
S.W. 152, 153 (Tex. Comm’n App. 1927, judgm’t adopted); see also Tex. Att’y Gen. Op. No.
GA-0273 (2004) at 3 (stating generally that both positions must be offices for conflicting-loyalties
incompatibility to apply); Tex. Att’y Gen. Op. No. JC-0054 (1999) at 2 (quoting Tex. Att’y Gen. Op.
Nos. JM- 1266 (1990), JM- 129 (1984) (stating that conflicting-loyalties       incompatibility applies
“where one office might . . . impose its policies on the other or subject it to control in some other
way”)). See generally Tex. Att’y Gen. Op. No. GA-0307 (2005) at 4 (discussing conflicting-loyalties
incompatibility). Consequently, conflicting-loyalties incompatibility does not prohibit the reciprocal
arrangement you describe.

         Although the county attorneys of Jeff Davis and Presidio counties may serve as the other’s
assistant county attorney without violating article XVI, section 40 of the Texas Constitution or the
common-law doctrine against incompatibility, c$ Tex. Att’y Gen. LO-96-l 48, at 2 (concluding that
the 156th Judicial District Attorney could appoint the Live Oak County Attorney to serve as an
assistant district attorney), this dual service may raise ethical concerns in particular situations. In that
eventuality, the attorney should consult the Texas Disciplinary Rules of Professional Conduct. Cf:
Tex. Att’y Gen. Op. No. JC-0054 (1999) at 3 (noting that while neither article XVI, section 40 nor
the common-law doctrine of incompatibility forbids the Brewster County Attorney from also serving
as an attorney for the city of Alpine, ethical dilemmas may arise). See generally TEX. DISCIPLINARY
R. PROF’LCONDUCT,reprinted in TEX. GOV’T CODEANN., tit. 2, subtit. G app. A (Vernon 2005)
(TEx. STATEBAR R. art. X, 9 9).
The Honorable Bart E. Medley - Page 5         (GA-0350)




                                       SUMMARY

                        The Jeff Davis and Presidio County Commissioners Courts
               each must approve creating an assistant county attorney position
               in its county, even if the assistant will not receive a salary. The
               commissioners court also must approve reimbursing travel expenses
               for that position.  If the appropriate county commissioners      court
               approves creating the position, the Jeff Davis County Attorney may
               appoint the Presidio County Attorney as the Jeff Davis assistant
               county attorney, and vice versa. Neither article XVI, section 40 of the
               Texas Constitution nor the common-law doctrine of incompatibility
               precludes the two county attorneys from serving as each other’s
               assistant.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
