Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 24,2004
Mr. Jerry Clark Opinion No. GA-0250
Executive Vice President and General Manager
Sabine River Authority of Texas Re: Whether a county clerk may serve
Post Office Box 579 simultaneously as a director of the Sabine
Grange, Texas 7763 1 River Authority (RQ-0203-GA)
Dear Mr. Clark:
You ask whether a county clerk may serve simultaneously as a director of the Sabine River
Authority.’
Specifically, you ask three questions:
1. Does the elected office of County Clerk and an appointment as
a Director of the Sabine River Authority of Texas constitute a
dual civil office of emolument such as is prohibited by Article
XVI, Section 40, of the Texas Constitution?
2. Does a per diem, as granted by the 1955 Amendments to Chapter
101 of the Session Laws as amended to Sabine River Authority
directors constitute an[] emolument as prohibited for dual office
by Article XVI, Section 40, of the Texas Constitution?
3. Can the per diem contemplated by the 1955 Amendments to
Chapter 101 of the Session Laws as amended be disavowed,
relinquished or rescinded in any manner as to remove such a
disqualification?
Request Letter, supra note 1, at 1
Article XVI, section40 of the Texas Constitution provides, in relevant part, that “[n]o person
shall hold or exercise at the same time, more than one civil office of emolument.” TEX. CONST.art.
‘Letter from Mr. Jeny Clark, Executive Vice President and General Manager, Sabine River Authority, to
Honorable Greg Abbott, Texas Attorney General (Mar. 29,2004) (on file with Opinion Committee, also available of
http://www.oag.state.tx.us) [hereinafter Request Letter].
Mr. Jerry Clark - Page 2 (GA-0250)
XVI, 5 40. As a paid, elected constitutional officer, the county clerk holds a civil office of
emolument for the purposes of article XVI, section 40. See TEX. CONST. art. V, 5 20 (establishing
the office of county clerk); see also TEX. Lot. GOV’T CODE ANN. 5 152.011 (Vernon 1999)
(providing county commissioners court authority to set county clerk’s salary). The office of county
clerk does not fall within any ofthe exceptions to article XVI, section 40. See TEX. CONST.art. XVI,
9 40.
A director of the Sabine River Authority holds a civil office of emolument as well.
Management and control of the affairs of the Sabine River Authority district are vested in its board
of directors, which consists of members appointed by the governor and confirmed by the senate. See
Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, 5 3, 1949 Tex. Gen. Laws 193, 194. Various
governmental powers are conferred upon the directors of the river authority, including that of
eminent domain. See id. 5 14, at 196-97. The directors are to receive twenty-five dollars for each
day of service necessary to discharge their duties. See Act of Apr. 6,1955,54th Leg., R.S., ch. 101,
$2, 1955 Tex. Gen. Laws 379,379~80 (amending Act ofApr. 27, 1949, 51st Leg., R.S., ch. 110,
$7, 1949 Tex. Gen. Laws 193, 195, to increase the ten dollar per diem to twenty-five dollars).
The directors of the river authority exercise sovereign functions of the government largely
independent of the control of others, and they receive compensation for serving. See Aldine Indep.
Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955). Furthermore, the established per diem is
an “emolument” for purposes of article XVI, section 40, because the per diem is a pecuniary profit,
gain, or advantage paid to an officer and is not merely a reimbursement for expenses. See Act of
Apr. 6, 1955, 54th Leg., R.S., ch. 101 5 2, 1955 Tex. Gen. Laws, 379, 379-80 (the per diem is in
addition to actual expenses); Irwin v. State, 177 S.W.2d970 (Tex. Crim. App. 1944); Willisv. Potts,
377 S.W.2d 622 (Tex. 1964) (even a token payment constitutes an emolument). Therefore, adirector
of the Sabine River Authority, without reference to anything else, occupies a civil office of
emolument within article XVI, section 40 of the Texas Constitution. See Tex. Att’y Gen. Op. No.
JM-594 (1986) at l-2 (determining, for similar reasons expressed here, that a director of the
Angelina and Neches River Authority occupies a civil office of emolument); see also Tex. Att’y
Gen. Op. No. JM-172 (1984) at 3 (directors ofriver authorities are not included within exception in
article XVI, section 40 for directors of soil and water conservation districts).
You also ask if the per diem may be “disavowed, relinquished or rescinded in any manner”
to avoid triggering article XVI, section 40. Request Letter, supra note 1, at 1 (question 3). Judicial
decisions and this office have determined that compensation attached to an office is an incident of
office that the office holder cannot repudiate. SeeMurkwell v. Galveston County, 186 S.W.2d 273
(Tex. Civ. App.-Galveston 1945, writ refd); Tex. Att’y Gen. Op. No. JM-333 (1985); see also
Morrison v. City ofFort Worth, 155 S.W.2d 908, 910 (Tex. 1941) (public officers cannot estop
themselves from collecting the full compensation by agreeing to accept less or actually accepting
less); Broom v. Tyler County Comm’rs Court, 560 S.W.2d 435, 437 (Tex. Civ. App.-Beaumont
1977, no writ).
However, Texas Government Code section 574.005 provides that:
An individual who holds an elected or appointed local
government office maybe appointed to the governing body of a state
Mr. Jerry Clark - Page 3 (GA-0250)
agency if otherwise eligible. The individual may not receive
compensation for serving on the governing body of the state agency
but may be reimbursed as provided by other law for a reasonable and
necessary expense incurred in the performance of an official function.
TEX. GOV’T CODE ANN. 5 574.005(b) (Vernon Supp. 2004-05). For the purposes of this statute a
county clerk is an elected local government office and the Sabine River Authority is a state agency.
See id. 3 574,005(a)(l)-(2); see also Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, 5 1, 1949 Tex.
Gen. Laws 193, 194 (establishing the Sabine River Authority as a state agency). Section 574.005,
in this situation, detaches the compensation normally attached to the office of a Sabine River
Authority director, which has the effect of eliminating that office as an office of emolument. Thus,
provided that a county clerk is otherwise eligible, the county clerk may be appointed as a director
of the Sabine River Authority to serve simultaneously in both offices without violating the Texas
Constitution.
Although Government Code section 574.005 removes the constitutional barrier in this
instance, wemust also consider the common-law doctrine ofincompatibility to determine a person’s
eligibility to hold two offices. See TEX. GOV’T CODE ANN. 5 574.005(b) (Vernon Supp. 2004-05)
(“An individual who holds an elected or appointed local government office may be appointed to the
governing body of a state agency if otherwise eligible.“) (emphasis added). The common-law
doctrine of incompatibility prevents one from holding two public offices the duties of which are
inconsistent or in conflict (“conflicting loyalties” incompatibility), appointing oneself to another
public entity (“self appointment” incompatibility), or holding an employment subordinate to one’s
public office (“self-employment” incompatibility). See Tex. Att’y Gen. Op. No. GA-0032 (2003)
at 4.
Conflicting loyalties incompatibility can arise in several situations. As a general matter,
where geographical boundaries of two governmental bodies overlap, there is the potential for
conflict, particularlywhere both entities collect taxes. See Tex. Att’y Gen. Op. No. GA-001 5 (2003)
at 2. It is also well established that when two governmental bodies are authorized to contract with
each other, one may not serve as a member of both. Id. However, the duties of a county clerk and
a director of the Sabine River Authority do not conflict, because holding both offices would not
prevent one from exercising independent and disinterested judgment in either or both offices. See
generally Tex. Att’y Gen. Op. No. GA-01 69 (2004); Thomas v. Abernathy County Line Indep. Sch.
Dist., 290 S.W. 152 (Tex. Comm’n App. 1927, judgm’t adopted). Neither office has taxing
authority, nor are they authorized to contract with each other. Compare TEX. GOV’T CODEANN.
5 51.402 (Vernon ~~~~),~~~TEx.Loc.Gov’TCODEANN. ch. 82 (Vernon 1999) (powers andduties
of county clerk), with Act of Apr. 27, 1949,51st Leg., RX, ch. 110, 5 3, 1949 Tex. Gen. Laws 193
(powers and duties of Sabine River Authority director).
The incompatibilities of self-appointment and self-employment are equally inapplicable. A
county clerk is elected, see TEX. CONST.art. V, 5 20, and a director of the Sabine River Authority
is appointed by the governor, see Act of Apr. 27, 1949,5 1st Leg., RX, ch. 110, 9 3, 1949 Tex. Gen.
Laws 193, 194; neither is an employee of the other. Consequently, a county clerk may serve
simultaneously as a director of the Sabine River Authority.
Mr. Jerry Clark - Page 4 (GA-0250)
SUMMARY
The offices of county clerk and director of the Sabine River
Authority are both civil offices of emolument when occupied by
separate individuals. A director of the Sabine River Authority holds
a civil office of emolument regardless ofwhether that director accepts
the compensation attached to the office. However, while article
XVI, section 40 of the Texas Constitution prohibits an individual
from simultaneously holding two offices of emolument, section
574.005 of the Government Code allows a local government officer
to be appointed to the governing body of a state agency. Section
574.005 prohibits a local government officer from being compensated
for serving in the appointed office, which prohibition renders the
appointed office merely a civil office, not a civil office of emolument.
Therefore, article XVI, section 40 of the Texas Constitution
would not prevent a county clerk from serving simultaneously as a
director of the Sabine River Authority. Furthermore, the common-
law doctrine of incompatibility does not present a bar.
Very truly yours,
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee