                             The Attorney                General             of Texas
                                               August        6,    1979
MARK WHITE
Attorney General


                        Honorable Richard G. Morales, Sr.                 Opinion No. MW-3 9
                        County Attorney of Webb County
                        1810San Bernard0                                Re: Whether a person may be
                        Laredo, Texas 78040                            ‘Director of Operations of a CETA
                                                                        swam        administered  by the
                                                                        county and also serve as a city
                                                                        councilman.

                        Dear Mr. Morales:

                               You have asked whether the dual office holding prohibition of the state
                        constitution is applicable to the Director of Operations for the Webb County
                        CRTA program who is also a member of the city council for the City of
723 Main. suite 810     Laredo.
HO”*to”.TX. 7ma?
7w2aom~                        The Director of Operations has been serving in that capacity since
                        1974. He was one of three people who were selected by the county
Km Broadway.svite 312   commissioners    court to serve as administrators     of the county’s CETA
L”bbock TX. m401        program.    His salary of $20,500 is paid wholly from federal funds        He
mv7.7~5238              reports to the Executive Director of the program. Eighteen discrete areas
                        of the progratis operations are under the supervision of the Director of
                        Operations.    Among the activities with which he is involved are on-the-job
                        training, public service projects, youth training and employment, classroom
                        education,   counseling    and various support services     offered  to the
                        particiBants in the CETA program. In 1978 the Director won a nonpartisan
                        election to a four year term on the Laredo city council.

                               With exceptions not relevant       here, article 16, section 40 of the Texas
                        Constitution   forbids the, holding       of two “civil offices of emolument”
                        concurrently by the same person.           Members of the city council are paid a
                        salary of $150 a month. Such office,       therefore, is clearly one of emolument.
                        Attorney General Letter Advisory          Nos. 154 (1978); 85 (1974); 19 (1973). The
                        question then becomes whether the         Director occupies a “civil office.”

                               In our opinion the Director of Operations does not occupy an “office.”
                        See Green v. Stews& 516 S.W.2d 133 (Tex. 1974); Aldine 2nd. Sch. Dist. v.
                        Gdlev,      280 SW.2 Id 578 (Tex. 1955); Kimbrough v. Barnett, 55 S.W. 120
                        Ti-0);        Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi




                                                        p.   113
Honorable Richard G. Morale%.Sr.       -    Page .Two       (Mw-39)



1976, no writ); Tilley v. Rogers, 405 S.W.td 220 (Tex. Civ. App. - Beaumont 1966, writ
ref’d n.r.e.); Cib                       303 S.W.2d 485 (Tex. Civ. App. - Beaumont 1957,
writ ref’d n.r.e.l; Attorney General Letter Advisory Nos 85, 81 (1974); Attorney General
Opinions V-308 (1947); G-6458 (1945) (executive officer for the State Board for Vocational
Education is not a civil office holder). The position of Director of Operations does not
possess the elements attributed to an office as discussed in the above cases. The position
is not established by law nor does it have a fixed term. See Tex. Const. art. 16, S 30. The
duties of the position are not defined by law. The Director is not required to take an
official oath nor required to execute a bond. See Tex. Const. art. 16, S 1. Qualifications
for the position are not established by law. Hisremoval     from employment need not be
pursuant to the constitutional provisions for the removal of officers. See Aldine Ind. Sch.
Dlst. v. Standley, supra; Tex. Const. art. 5, S 24. No facts have beenpresented       which
establish that he exercises any portion of the sovereign authority largely independent of
the control of others. In brief, we believe that the city councilman does not breach the
dual office holding prohibition by serving in his present capacity with the county CETA
program.

      Finally, the question of incompatibility    must be considered.   In Letter Advisory No.
86 it was said:

               Whether two offices are incompatible is usually a question of
            fact, and incompatibility under the law exists when the faithful and
            independent exercise of one office would necessarily interfere with
            or control the faithful and independent exercise of the other.

            ....

            [Nlot every conflict of interest, or possibility thereof, results in
            legal incompatibility.  Conflicts can be avoided on occasion by the
            application of intervening statutes,    ordinances, or rule% or by
            abstention or recusal.. . .

See also Thomas v. Abernathy County Line Ind. Sch. Dist., 290 S.W. 152 (Tex. Comm’n App.
-State       v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ). Under
the facts you have presented, there is no apparent incompatibility,     however, since the
Attorney General does not find facts in the opinion process, you should examine any other
relevant facts as they develop in light of these cases and the letter advisory to determine
if there Is incompatibility    or a conflict.  See Attorney General Opinion M-714 (1970)
relating to contractual relationships between the city and the county CETA program.

                                           SUMMARY

            A city councilman serving as the Director of Operations          for a
            county CETA program does not constitute dual office



                                                 0&w?=
                                                 MARK     WHITE
                                                 Attorney General of Texas



                                                 P.   114
Honorable Richard G. Morales, Sr.      -    Page Three   (m-39)



JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by David B. Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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