                                            ,rzEN PAXTON
                                       ATTORNEY GENERAL OF TEXAS




                                           November 13, 2017



Mr. Conrado M. Hein, Jr.                               Opinion No. KP-0172
Interim Webb County Auditor
1110 Washington Street, Suite 201                      Re: Authority of a county commissioners court
Laredo, Texas 78040 ·                                  under Local Government Code section 111.062
                                                       to appoint two part-time employees to fulfill the
                                                       functions of a county budget officer, and the
                                                       applicability of incompatibility rules to the
                                                       appointed employees (RQ-0165-KP)

Dear Mr. Hein:

        Your predecessor asked about the authority of a county commissioners court to fill the
office of county budget officer. 1 His request letter informed us. that Webb County (the "County")
has a population in excess of250,000 and elected to operate under subchapter C of chapter 111 of
the Local Government Code. See Request Lytter at 1; see also TEX. Loe. Gov'TCODE §§ 111.061-
.075 (subchapter C entitled "Alternative Method of Budget Preparation in Counties with
Population of More than 125,000"). He also told us the commissioners court did not establish the
office of county budget officer nor did it appoint a full-time, single county budget officer, but
instead appointed two county employees as part-time budget officers. See Request Letter at 1. He
noted that one employee also serves as the executive administrator for the county judge, and the
other employee serves as the executive administrator for the commissioners court. Id. at 2. With
these facts your predecessor asked five questions. see id. at 1-2.

        Your predecessor first asked whether the "appointment of two part-time budget officers
rather than one full-time separate budget.officer and the failure to establish a county budget office
violate the ·intent and the provisions of the budget preparation rules and methods of [Local
Government Code] Section 111.062[.]" Id. at 1 (emphasis omitted). Local Government Code
subsection 11 l .062(a) provides that the "commissioners court of the county may appoint a county
budget officer to prepare a county budget forthe fiscal year." TEX. Loe. Gov'TCODE § l 11.062(a).
'fhe authority granted to a commissioners court to appoint a county budget officer and operate
under subsection C is discretionary. See TEX. Gov'T CODE § 311.016(1) ('"May' creates
discretionary authority or grants permission or a power."). Though the request letter asserted that
the County did not establish the office of county budget officer or appoint a budget officer, but
instead "appointed two part-time budget officers,". the minutes from the commissioners court

          1
           See Letter from Mr. Leo Flores, Webb ety. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2
(June 6, 2017), https://www.texasattomeygeneral.gov/opinion/ requests-for-opinion-rqs ("Request Letter").
Mr. Conrado M. Hein, Jr. - Page 2                    (KP-0172)



meeting of July 10, 2017, indicate that after the opinion request was submitted, it appointed a
county budget officer as well as an assistant budget officer. Request Letter at 1 (emphasis omitted);
Official Minutes for Webb Cty. Comm'rs Ct. Meeting of July 10, 2017;2 see also TEX. Loe. Gov'T
CODE § 111.073 (authorizing the commissioners court to employ personnel necessary to assist the
budget officer). Thus, the concerns regarding the lack of establishment and appointment of a
county budget officer and that two people share an officer position are now moot. 3 Accordingly,
we do not address the first question. See Tex. Att'y Gen. Op. No. GA-1022 (2013) at 3 (declining
to address moot questions).

        Your predecessor next asked whether the appointment of the county judge's employee is
the "equivalent" of appointing the county judge as the budget officer in violation of the conclusion
in Attorney General Opinion GA-0580 that the doctrine of incompatibility prevents a
commissioners court from appointing the county judge to serve as county budget officer. See
Request Letter at 2 (citing Tex. Att'y Gen. Op. No. GA-0580 (2007) at 3). Similarly, the third
question is whether the commissioners court's appointment of an employee who answers to it is
"equivalent" to appointing itself as budget officer. See id We consider these individuals' dual
roles under the three components of the common-law doctrine of incompatibility: self-
appointment, self-employment, and conflicting-loyalties. See Tex. Att'y Gen. Op. No. KP-0032
(2015) at 2. Self-appointment and self-employment incompatibility preclude an officer from being
appointed to or employed in a position over which the officer has appointment or employment
authority. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Conflicting-loyalties
incompatibility prohibits a person "from simultaneously holding two positions that would prevent
the person from exercising independent and disinterested judgment in either or both positions."
Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2; see also Thomas v. Abernathy Cty. Line Indep. Sch.
Dist., 290 S.W. 152, 153 (Tex. Comm'nApp. 1927,judgm't adopted) (holding incompatible the
positions of school trustee and municipal alderman).

        Here, self-appointment and self-employment incompatibility do not apply because neither
the county budget officer nor the assistant budget officer serve on the commissioners court which
appointed them. Conflicting-loyalties incompatibility applies only when both positions are "public
offices." See Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. A "public officer" is one upon whom
"any sovereign function of the government is conferred ... to be exercised by him for the benefit
of the public largely independent of the control of others." A/dine Indep. Sch. Dist. v. Standley,
280 S.W.2d 578, 583 (Tex. 1955). A public office also involves the authority to perform largely
independent of the control of others. See Tex. Att'y Gen. Op. No. JC-0029 (1999) at 2. "In other
words, individuals who perform sovereign functions under the direction of another are not
officers." Id Assuming the budget officer is an officer under A/dine, his other position is that of
an employee serving at the direction and control of the county judge. The assistant budget officer
does not exercise any sovereign power under subchapter C, and thus is not an officer, and his other

        2
         Available athttp://www.webbcounty.com/AgendaandMinutes (last visited Oct. 17, 2017).
        3
           The footnote in Attorney General Opinion GA-0580 to which your predecessor pointed as authority that a
budget officer may not be part-time merely acknowledges that larger counties are ones in which "preparing the budget
is not a part-time job." Tex. Att'y Gen. Op. No. GA-0580 (2007) at 3 n.2. In so doing, it implicitly recognizes that
preparation of the budget in other counties could be a part-time task. Nothing in Local Government Code chapter 111
requires the budget officer to be a full-time position. See TEX. Loe. Gov'T CODE§§ 111.001-.075.
Mr. Conrado M. Hein, Jr. - Page 3                      (KP-0172)



position is that of an employee, subject to the direction and control of the commissioners court.
Because each person's other position is an employee position and not a public office, conflicting-
loyalties incompatibility does not preclude them from serving in both roles. Given this conclusion,
we need not address the fifth question which is contingent upon a different conclusion. 4

          Fourth, your predecessor asked whether the county judge and a county commissioner or
both may meet with the budget officers "in departmental budget meetings or in separate meetings
with the intent of making budget decisions prior to the filing of the official proposed budget[.]"
Request Letter at 2. This question involves the propriety of the county judge and a member of the
commissioners court participating in meetings that the budget officer and the assistant budget
officer may hold with the various County departments. 5 Chapter 111 as a whole provides that the
county judge serves as the budget officer only in counties with a population of 225,000 or less.
See TEX. Loe. Gov'T CODE §§ 111.001 (providing that subchapter A applies to county with
population of 225,000 or less and that does not operate under subchapter C); 111.002 (providing
the county judge serves as budget officer in a county operating under subchapter A); 11 l .062(b)(1)
(requiring, in county abolishing the county budget officer position, that budget preparation duties
devolve onto the county judge in counties with a population of 225,000 or less). In no instance
does chapter 111 provide for a county commissioner to serve as budget officer. See generally id.
§§ 111.001-.095. Thus, to the extent the county judge or a commissioner actually serves as the
budget officer and prepares the budget, they would be acting contrary to subchapter C. See id. §
111.062. However, as it is the commissioners court that is ultimately responsible for adopting the
budget, the county judge and the commissioners have reason to participate in conversations
between the budget officer, the assistant budget officer, and the various County departments. See
id. §§ 111.068 (requiring the commissioners court to act on the budget), 111.071 ("The budget
officer may assist the commissioners court in the performance of the court's duties relating to the
efficiency and effectiveness of county operations."); see also Griffin v. Birkman, 266 S.W.3d 189,
194,----95 (Tex. App.-Austin 2008, pet. denied) (acknowledging that article V, section 18(b) of the
Texas Constitution grants a county commissioners court power and broad discretion over the
county budget and budgetary decisions). Moreover, nothing in Local Government Code chapter
111 expressly prohibits such participation. See TEX. Loe. Gov'T CODE§§ 111.001-.095. Yet,
whether the situation described-the participation of the county judge and a commissioner in
department meetings with the budget officer and the assistant budget officer-constitutes the
preparation of the budget contrary to subchapter C involves issues of fact and, thus, exceeds the
purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0091 (2016) at 2 ("Fact
finding is beyond the scope of an attorney general opinion[.]").




         4
          The fifth question is if we determine that the employees cannot serve as budget officers, "will the provisions
of Section 111.062 prohibit them from preparing the county's proposed budget and default the budget preparation to
the county auditor[.]" Request Letter at 2.
         5Your   predecessor did not ask specifically about any Open Meetings Act implications of meetings involving
members of the commissioners court. Three members of a commissioners court is a quorum for most purposes
including adoption of the budget. TEX. GOV'T CODE§ 311.013(b); TEX. Loe. GOV'T CODE§ 81.006(a). lfa quorum
attends department meetings at which the county budget and other county business is discussed, it would be a meeting
subject to the requirements of the Open Meetings Act. See TEX. Gov'T CODE§ 551.001(4) (defining "meeting").
Mr. Conrado M. Hein, Jr. - Page 4             (KP-0172)



                                       SUMMARY

                      The common-law doctrine of incompatibility does not
              prohibit two individuals appointed to the positions of county budget
              officer and assistant budget officer from serving in those positions
              because of their simultaneous employment as employees of the
              county judge and the county commissioners court, respectively.

                       Whether the participation of the county judge and a
               commissioner in department meetings with the county budget
               officer and the assistant budget officer constitutes the preparation of
               the budget contrary to chapter 111, subchapter C is a question of
               fact.

                                              Very truly yours,




                                              KEN PAXTON
                                              Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee
