                                      The Attorney          General of Texas
                                                           April 5, 1984
JIM MATTOX
Attorney General



Supreme      Court Building
                                     Honorable Oscar H. Mauzy                Opinion No. JM-141
P. 0. BOX 12546                      Chairman
Austin.    TX. 76711- 2540           Senate Committee on Jurisprudence       TVS?: Whether a county com-
5121475-2501                         Texas State Senate                      missioner may be appointed
T&X      910/674-1367                P. 0. Box 12068, Capitol Station        to the Texas Sesquicentennial
Telecopier      5121475.0266
                                     Austin, Texas   78711                   Commissio”

,607 Main St.. Suite 1400            Dear Senator Mauzy:
Dallas.   TX. 75201.4709
2141742-6944                              You have asked whether a county commissioner may serve as a
                                     gubernatorial appointee on the Texas Sesquicentennial Commission
4624 Alberta    Ave., Suite    160   created by article 6145-11, V.T.C.S. In answering such questions of
El Paso. TX.    79905.2793           dual office holding, this office has considered the following three
9151533.3464                         issues:

   20 oakis    Ave.. Suite 202
                                                  1. Whether article II, section 1 of the Texas
tiouston.   TX. 77002-6966                     Co”stitutio”, the separation of powers provision,
7131650-0666                                   prevents one person from holding the two offices.

                                                  2. Whether article XVI, section 40,      which
606 Broadway.      Suite 312
hbbock.   TX.     79401-3479
                                               prohibits one person from holding two       civil
6061747-5238
                                               offices of emolument is applicable.

                                                  3. Whether   the   common  law   doctrine of
 4309 N. Tenth. Suite B                        incompatibility prevents one person from holding
 McAllen. TX. 76501-1685
                                               both positions.
 5121662-4547

                                          Article II, section 1 of the Texas Constitution provides as
 200 Main Plaza. Sulk   400          follows:
 San Antonio,  TX. 762052797
 5121225.4191
                                               The powers of the Government of the State of Texas
                                               shall be divided into three distinct departments,
                                               each of which shall be confided to a separate body
                                               of   magistracy.   to wit:     Those which     are
                                               Legislative to one; those which are Executive   to
                                               another, and those which are Judicial to another;
                                               and no person, or collection of persons, being of
                                               one of these departments, shall exercise any power
                                               properly attached to either of the others, except
                                               in the instances herein expressly permitted.




                                                             p. 603
Honorable Oscar Ii.Mauzy - Page 2




     Prior opinions of this office have held that this provision bars
one person from holding offices in two different branches of
government, see Attorney General Opinions H-7, H-6 (1973); Ietter
Advisory No.137 (1977), although there are also opinions which permit
one person to hold office in two branches of government. See Attorney
General Opinions M-1194 (1972) (judge may serve as college regent);
M-1146 (1972) (Parks and Wildlife Commissioner may serve as a trustee
of an independent school district); M-842 (1971) (judge of a domestic
relations court may serve as a regent of TSU); C-43 (1963); and V-63
(1947) (a county commissioner may serve as a trustee of an independent
school district).

     However, it is unnecessary to determine which line of opinions
represents the correct view of article II, section 1. The Texas
Constitution assigns a county commissioner to the judicial branch.
See Tex. Const. art. V, §l; Attorney General Opinion H-6 (1973). The
members of the Sesquicentennial Commission do not, in our opinion,
"exercise any power properly attached to either of the [other
departments of government]." Thus, article II, section 1. however
interpreted, does not bar a county commissioner from serving on the
Sesquicentennial Commission.

     Article   6145-11, V.T.C.S.,    establishes the     "Texas   1986
Sesquicentennial Commission." It consists of public members appointed
by the governor, members drswn from the legislature, and the executive
heads of particular state agencies. V.T.C.S. art. 6145-11, 82. The
commission is abolished effective September 1, 1987. Sec. 11.

     The duties of the commission are set out in sections 7 and 9A of
article 6145-11, V.T.C.S. The overwhelming majority of its duties are
advisory and ceremonial. For example, the commission is to encourage,
assist and develop standards for activities celebrating the state's
sesquicentennial organized by individuals, private organizations, and
governmental bodies, and to sanction activities which meet its
standards. Sec. 7(l), (3). (4). It is to publicize sesquicentennial
activities and invite national and international dignitaries to attend
such activities. Sec. 7(2!, (5), (6). The commission also has
responsibil~itieswith respect to developing a logo and sanctioning and
selling commemorative products.     Sec. 7(7), (8).     It may begin
planning for the Texas Sesquicentennial Museum. Sec. 9A(a). Planning
is to be completed and the museum operated by the Texas Sesquicenten-
nial Museum Board.

     The commission does, however, perform some minor functions of the
executive branch. Members of the executive branch cause the laws to
be carried out, while the legislative branch enacts them, and the
judiciary determines whether the actions of the other branches are
lawful, when the issues are presented in a proper case. See State V.
Southwestern Bell Telephone Co., 526 S.W.?d 526 (Tex. 1975);Walker V.




                                    p. 604
Honorable Osca~rH. Mauzy - l'age3




Baker, 196 S.W.2d 324 (Tex. 1946); Texas Liquor Control Board V.
Continental Distilling Sales Co., 199 S.W.Zd 1009, 1012 (Tex. Civ.
APP. - Dallas 1947, writ ref'd n.r.e.). See also Tex. Const. art. II.
§l. interp. cownentary (Vernon 1955).

      The cormnissionhas power to authorize others to use the logo it
develops, to sanction commemorative products, and to make rules and
regulations necessary to perform its functions.         However. the
commission has minimal power to affect individuals through exercise of
the powers to sanction commemorative products and authorize use of its
logo. Exercising these powers assists the commission in publicizing
,and commemorating the sesquicentennial while it controls the kind of
product bearing its imprint.       The commission mY      adopt rules
"necessary for it to perform its functions," a rulemaking power that
is as limited~as its functions.

     The commission's executive powers, in comparison to its advisory
and ceremonial duties, are few and de minimus. Looking at the
commission's legal role in its entirety, and taking into consideration
its short life span, we cannot say that members of the commission are
"of" the executive branch or "exercise any power properly attached" to
the executive branch. Therefore, article II, section 1 of the Texas
Constitution, however interpreted, does not bar a county commissioner
from serving as a member of the Texas 1986 Sesquicentennial
C0mmiss10*.

     Article XVI, section 40 of the Texas Constitution does not
prohibit   the   appointment   in  question.    A   member   of   the
Sesquicentennial Commission receives no compensation for his service,
only reimbursem~entof expenses. See V.T.C.S. art. 6145-11, 95. Thus,
he does not hold a "civil officeof emolument" within article XVI,
section 40. Moreover, county commissioners are expressly excepted
from article XVI, section 40. Therefore, article XVI, section 40
poses no bar to this appointment.

     The common law doctrine of incompatibility prevents one person
from holding two positions where one is accountable or subordinate to
the other, or where there is overlap of powers and duties such that
one person could not disinterestedly serve in both positions. See
Thomas V. Abernathy County Line Independent School District, 290 ST
152 (Tex. Cocmt'nApp. 1927, judgmt adopted): State ex rel. Brennan V.
Martin, 51 S.W.Zd 815 (Tex. Civ. App. - San Antonio 1932, no writ);
Letters Advisory Nos. 137, 149 (1977); 114 (1975). We find no
relationship of dominion or accountability between the commissioners
court and the Sesquicentennial Commission, nor do we find any conflict
or overlap between their duties. Therefore, the common law doctrine
of incompatibility does not prevent a county commissioner from also
serving as a member of the Sesquicentennial Commission.




                                    p. 605
                                                                     .   -.


Honorable Oscar 11.Mauzy - Page 4




     A county commissioner may serve on the Texas Sesquicentennial
commission.

                             SUMMARY

             A county commissioner is not barred by article
          II, section 1 or article XVI, section 40 of the
          Texas Constitution or by the common law doctrine
          of incompatibility from serving on the Texas
          Sesquicentennial Commission.


                                         very truly your
                                               .

                                       J-b
                                         JIM     MATTOX
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Susan Garrison
Nancy Sutton




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