                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                              December      152003



The Honorable Joe F. Grubbs                               Opinion No. GA-01 32
Ellis County and District Attorney
1201 North Highway 77, Suite B                            Re: Whether the mayor of a home-rule city is
Waxahachie, Texas 75 165-5 140                            prohibited by article XVI, section 40 of the Texas
                                                          Constitution    or the common-law     doctrine of
                                                          incompatibility    from serving     as a county
                                                          purchasing agent under section 262.0115 of the
                                                          Local Government Code (RQ-0076-GA)

Dear Mr. Grubbs:

        You ask whether the mayor of a home-rule city is prohibited by article XVI, section 40 of the
Texas Constitution or the common-law doctrine of incompatibility         from serving as a county
purchasing agent under section 262.0115 of the Local Government Code.’

         You inform us that Ellis County is considering creating a purchasing-agent position under
section 262.0115 of the Local Government Code, which authorizes the commissioners court in a
county with a population of more than 100,000 to “employ a person to act as county purchasing
agent.” TEX. LOC. GOV’T CODE ANN. 0 262.0115(a) (Vernon Supp. 2004). A county employee who
is also the mayor of Midlothian, Texas, a home-rule city located in Ellis County, currently assists the
commissioners court with purchasing. See Request Letter, supra note 1, at 1. If the commissioners
court creates the purchasing-agent position, that employee might be selected to fill it. See id. He
has asked you whether his appointment to the county position would affect “his ability to serve as
Mayor of Midlothian with respect to dual office holding or incompatibility of office.” Id.

        You have concluded that the Texas Constitution’s dual-office-holding    prohibition “does not
prevent the Mayor from also serving as a statutory purchasing agent.” Id. at 2. Article XVI, section
40 of the Texas Constitution prohibits dual office holding, providing that “[n]o person shall hold or
exercise at the same time, more than one civil office of emolument.” TEX. CONST. art.XVI, § 40(a).
An “emolument” for purposes of article XVI, section 40 is any “pecuniaryprofit, gain or advantage,”
Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944), including any amount received in
excess of actual expenses, see Tex. Att’y Gen. Op. No. GA-0032 (2003) at 2, such as an expense



         ‘See Letter fromHonorable Joe F. Gmbbs, Ellis County and District Attorney, to Honorable Greg Abbott, Texas
Attorney General, at 1 (June 30,2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Joe F. Grubbs - Page 2               (GA-0132)




allowance or per diem, see id., Tex. Att’y Gen. Op. No. JM-704 (1987) at 2. An “emolument” does
not include the reimbursement of actual expenses. See Tex. Att’y Gen. Op. Nos. DM-55 (1991) at
2, MW-21 (1979). You inform us that the mayor of Midlothian receives no emolument.            See
Request Letter, supra note 1, at 1-2. Thus, the constitutional dual-office-holding prohibition is
inapplicable.

         On the other hand, you believe that the common-law doctrine of incompatibility precludes
the mayor from serving as purchasing agent. See id. at 2-3. The common-law doctrine of
incompatibility is “not a single doctrine,” but comprises three aspects: (1) conflicting loyalties; (2)
self-appointment; and (3) self-employment.     See Tex. Att’y Gen. Op. No. JC-0564 (2002) at 1. The
first two strands arise when a person holds two public offices, prohibiting public officers from
holding offices with conflicting public duties and precluding public bodies from appointing one of
their members to another office. See id. at l-2 (citing Thomas v. Abernathy County Line Indep. Sch.
Dist., 290 S.W. 152 (Tex. Comm’n App. 1927, judgm’t adopted) and Ehlinger v. Clark, 8 S.W.2d
666,674 (Tex. 1928)). The last strand arises when a person holds an office and an employment. It
prevents a public officer from serving in an employment position that the public officer supervises.
See id. at 2 (citing Tex. Att’y Gen. LA-l 14 (1975)); see also Tex. Att’y Gen. Op. No. JC-0225
(2000) at 2 (common-law doctrine of incompatibility bars one person from holding “an office and
employment if the office has a supervisory role over the employment”).

         You are concerned that the mayor’s service as county purchasing agent may violate
conflicting-loyalties  incompatibility, which would also affect his status as mayor. See Request
Letter, supra note 1, at 3-4; Tex. Att’y Gen. Op. No. GA-0015 (2003) at 5 (concluding that an
officeholder who accepts and qualifies for a second office that is incompatible with the first under
conflicting-loyalties incompatibility automatically resigns the first office as a matter of law) (citing
Thomas, 290 S. W. at 153). The other two strands are not relevant because your question does not
involve a body appointing one of its members to another office, and neither position at issue
supervises the other.

         Conflicting-loyalties incompatibility applies only to the holding of two public offices. See
Thomas, 290 S.W. 152; Tex. Att’y Gen. Op. No. JC-0270 (2000) at 2 (“‘conflicting loyalties’
incompatibility does not prohibit an individual from holding two positions where one of those
positions does not constitute an ‘office”‘). A mayor is an officer for purposes of the common-law
doctrine of incompatibility.    See, e.g., Tex. Att’y Gen. Op. No. JC-0363 (2001) (concluding that
mayor may not serve as director of a hospital district that has condemned property within the city).
Thus, as a threshold matter, whether the doctrine applies here depends upon whether a purchasing
agent who serves under section 262.0115 holds a public office.

       Section 262.0115 of the Local Government       Code provides in pertinent part as follows:

                       (a) In a county with a population of more than 100,000, the
               commissioners     court may employ a person to act as county
               purchasing agent. However, this section does not apply to a county
The Honorable Joe F. Grubbs - Page 3              (GA-0132)




               that has appointed a purchasing agent under Section 262.011 and that
               has not abolished the position as authorized by law.

                        (b) A purchasing agent employed under this section serves at
               the pleasure of the commissioners court.




                        (d) Under the supervision of the commissioners court, the
               purchasing agent shall carry out the functions prescribed by law for
               a purchasing agent under Section 262.011 and for the county auditor
               in regard to county purchases and contracts and shall administer the
               procedures prescribed by law for notice and public bidding for county
               purchases and contracts.

                       (e)   A county that has established the position of county
               purchasing     agent under this section may abolish the position at any
               time. On      the abolition of the position, the county auditor shall
               assume the    functions previously performed by the purchasing agent.

TEX. Lot. GOV’T CODE ANN. 0 262.0115 (Vernon Supp. 2004).

        The decisive factor distinguishing a public officer from a public employee is “whether any
sovereign function of the government is conferred upon the individual to be exercised by him for the
benefit of the public largely independent of the control of others.” Aldine Indep. Sch. Dist. v.
Standky, 280 S.W.2d 578,583 (Tex. 1955) (citation omitted). Under section 262.0115 ofthe Local
Government Code, a purchasing agent “shall carry out the functions prescribed by law for a
purchasing agent under Section 262.011 . . . in regard to county purchases and contracts.” TEX.LOC.
GOV’T CODE ANN. kj262.0115(d) (V emon Supp. 2004). A purchasing agent under section 262.011
is appointed by a special board to a two-year term and is authorized, among other things, to
“purchase all supplies, materials, and equipment” and to “contract for all repairs to property” used
by the county, except purchases and contracts that must be competitively bid. Id. 5 262.01 l(d).
Based on a purchasing agent’s powers under section 262.011, you believe that a purchasing agent
who serves under section 262.0115 of the Local Government Code is a public officer because he or
she “has independent authority to enter into contracts on behalf of the County except where required
to be made by bid.” Request Letter, supra note 1, at 3.

         Significantly, however, a section 262.0115 purchasing agent does not exercise authority
independent of the commissioners court’s control. Unlike a section 262.011 purchasing agent, a
section 262.0115 purchasing agent is employed by and serves at the pleasure of the commissioners
court, which may abolish the position at any time. See TEX.LOC. GOV’T CODEANN. 9 262.01 lS(a)-
(b), (e) (Vernon Supp. 2004). Furthermore, section 262.0115 expressly provides that a purchasing
agent employed under that section carries out his or her purchasing functions “[ulnder the
supervision of the commissioners court.” Id. 9 262.0115(d).     Given the commissioners court’s
The Honorable Joe F. Grubbs     - Page 4          (GA-0132)




supervisory authority over the position, we conclude that a purchasing agent employed under section
262.0115 does not exercise sovereign functions independent of the control of others and therefore
is not a public officer. See Aldine Indep. Sch. Dist., 280 S.W.2d at 583.

         You also suggest that a section 262.0115 purchasing agent must be an officer because that
statute authorizes a commissioners court to delegate more authority to the purchasing agent than the
court would otherwise be authorized to delegate to an employee who assists the court with
purchasing. See Request Letter, supra note 1, at 3; Tex. Att’y Gen. Op. No. JC-0264 (2000) at 4-5
(commissioners    court may not delegate purchasing duties except pursuant to express statutory
authority). Although section 262.0115 may authorize a commissioners court to delegate some
authority, the statute does not vest a purchasing agent with the power to exercise authority
independent of the commissioners court’s control.

          Because a section 262.0 115 purchasing agent does not hold a public office, the common-law
doctrine of incompatibility does not prohibit the mayor from serving in that position, and the mayor
would not automatically resign from his public office by accepting that employment. We note that
you are concerned that the mayor’s city duties may conflict with his ability to serve the county’s
interests, particularly because the Local Govemrnent Code provides that a purchasing agent may
make cooperative purchases with the purchasing agent of a city in the county. See Request Letter,
supra note 1, at 3-4; TEX. LOC. GOV’T CODE ANN. 9 262.01 l(g) (Vernon Supp. 2004). Although
the doctrine of incompatibility does not prohibit the mayor from serving as purchasing agent, the
commissioners      court may take into account any such concerns in selecting someone to fill the
position or in supervising the purchasing agent, as it is required to do by section 262.0115’s express
terms. See TEX. Lot. GOV’T CODE ANN. 9 262.0115(d) (Vernon Supp. 2004).
The Honorable Joe F. Grubbs    - Page 5         (GA-0132)




                                      SUMMARY

                      Neither article XVI, section 40 of the Texas Constitution,
               which prohibits dual office holding, nor the common-law doctrine of
               incompatibility prohibits a mayor who receives no emolument from
               serving as a county purchasing agent employed under section
               262.0115 of the Local Government Code.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
