                                ATTORNEY             GENERAL           OF TEXAS
                                              GREG         ABBOTT




                                                September l&2006



The Honorable Russell Wilson                                    Opinion No. GA-0460
Wilson County Attorney
1420 Third Street                                               Re: Whether a county attorney may accept
Floresville, Texas 78 114                                       appointment as a voluntary ombudsman for the
                                                                National Committee for Employer Support of
                                                                the Guard and Reserve (RQ-045%GA)

Dear Mr. Wilson:

        You ask whether a county attorney may accept appointment as a voluntary ombudsman                             for
the National Committee for Employer Support of the Guard and Reserve (“ESGR”).’

          ESGR was created in 1972, under Department of Defense (“DOD”) directive 1250.1, as the
lead DOD organization “to promote cooperation and understanding between Reserve component
members and their civilian employers and to assist in the resolution of conflicts arising from an
employee’s military commitment. “2 “The primary means of assistance in preventing, resolving, or
reducing employer and/or employee problems and misunderstandings                . is done through a
nationwide Ombudsman program.” About ESGR, supra note 2; Request Letter, supra note 1, at 2.
“ESGR has a national network of over 900 volunteer ombudsmen who help resolve issues between
 employers and their employees who serve in the National Guard and Reserve.” About ESGR, supra
note 2; Request Letter, supva note 1, at 2. “The Ombudsmen Services Program was established in
 1974 to provide information, counseling, and informal mediation of issues relating to compliance
 with the Uniformed Services Employment and Reemployment Rights Act.“3 “The Ombudsmen
 Services Program provides information, informal mediation, and referral service to resolve employer
 conflicts. ESGR is not an enforcement agency and does not offer legal counsel OYadvice.” About
.OSP, supra note 3 (emphasis added). “More than 96 percent of all such requests for assistance are
 resolved in this informal process, without requiring referral to the Department of Labor for formal


           ‘See Letter from Honorable Russell Wilson, Wilsdn County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at 1 (Mar. 1,2006) (on tile with the Opinion Committee, also available af http:llwww.oag.state.tx.us)
[hereinafter Request Letter].

        *NAT’LCOMM.FORESGR,WHATISESGR?             [hereinafferAboutESGR],       mnilable athttp://~.esgr.org/about
ESGR.asp (last visited Sept. 5,2006); see Request Letter, su~~ra note 1, at l-2.

          ‘NAT’L COMM. FOR ESGR, ESGR PROGRAM-OMBUDSMEN SERVICES[hereinafter About OSP],                      mnilableat
http://www.esgr.org/employers2/programs.asp?c=ombudsman.html (last visited Sept. 5,2006).
The Honorable Russell Wilson      - Page 2     (GA-0460)




investigation.” Id. Your question implicates both article XVI, section 12 ofthe Texas Constitution
and the common-law doctrine of incompatibility.

        Article XVI, section 12 of the Texas Constitution provides that “[n]o member of Congress,
nor person holding or exercising any office of profit or trust, under the United States, or either of
them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or
exercise any office of profit or trust under this State.” TEX. CONST.art. XVI, § 12. A county
attorney, as an elected official, clearly holds an “office of profit or trust under this State.” Id. art.
XVI, 3 12; see id. art. V, 5 2 1. The question before us is whether a volunteer ombudsman for ESGR
holds an “office of profit or trust, under the United States.” Id. art. XVI, fi 12.

         In 1955 the Texas Supreme Court declared that “the determining factor which distinguishes
a public officer from an 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. Standley, 280 S.W.2d 578, 583 (Tex. 1955). In an
opinion issued in2003, this office said that a member of a local selective service board~does not hold
an offtce oftrust under the United States “because a local board’s governmental powers are exercised
only in the event of [a] mandatory induction into the military services, and federal law does not today
provide for conscription.” Tex. Att’y Gen. Op. No. GA-0057 (2003) at 6. Thus, amember of a city
council was not barred by article XVI, section 12 from simultaneously serving as amember of a local
selective service board. See id. By contrast, a 1991 opinion of this office found that a justice of the
Supreme Court of Texas was barred by article XVI, section 12 from serving as a member of the
board of directors of the State Justice Institute because a member of that board was an appointee of
the President, and the board members “are expressly charged with the duty to establish policy and
funding priorities for the institute, to issue rules and regulations for the institute, and to distribute
federal funds in the form of grants and cooperative agreements or contracts.” Tex. Att’y Gen. Op.
No. DM-49 (1991) at 6.

         As we have indicated, an ombudsman for ESGR is a volunteer. See About ESGR, supra
note 2; Request Letter, supra note 1, at 2. Federal law states that the Secretary of Defense may
accept “[v]oluntaryservices to be provided forprograms providing services to members ofthe armed
forces.” 10 U.S.C.A. 5 1588(a)(3) (West 1998 & Supp. 2006). The same statute provides that with
regard to a person performing voluntary services “the Secretary concerned may not             place the
person in                                Id. § 1588(b)(3)(A). B ecause an ESGR ombudsman does not
offer legal counsel or advice, does not have enforcement authority, and, specifically by federal law,
performs no policy-making function, he does not, in our view, exercise “any sovereign function of the
government       [that is] largely independent of the control of others.” Aldine, 280 S.W.2d at 583.
As a result, he does not hold an “office of profit or trust, under the United States” in contravention
of article XVI, section 12 of the Texas Constitution, TEX.CONS?.art.XVI, 5 12.

       As to common-law incompatibility,       there are three aspects: self-appointment,     self-
employment, andconflictingloyalties.  SeeTex. Att’y Gen. Op. Nos. GA-0307 (2005) at 3, GA-0224
(2004) at 2, GA-0032 (2003) at 4. Because a county attorney neither appoints nor employs an ESGR
ombudsman, nor does an ESGR ombudsman appoint or employ a county attorney, the first two
The Honorable Russell Wilson      - Page 3      (GA-0460)




branches of incompatibility are inapplicable. As to the third aspect--conflicting    loyalties-it is well
established that its applicability requires that each position constitute an “office.” Tex. Att’y Gen.
Op. Nos. GA-0350 (2005) at 4, GA-0273 (2004) at 3. Because the position of ESGR ombudsman
is not an offrce, conflicting loyalties incompatibility does not bar the simultaneous holding ofthe two
positions at issue here.

        We conclude that a county attorney is not barred by either article XVI, section 12 of the
Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as
a volunteer ombudsman for the ESGR.
The Honorable Russell Wilson       - Page 4   (GA-0460)




                                        SUMMARY

                     A county attorney is not barred by either article XVI, section
              12 of the Texas Constitution or the common-law doctrine of
              incompatibility from simultaneously       serving as a volunteer
              ombudsman for the National Committee for Employer Support ofthe
              Guard and Reserve.

                                              Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
