Untitled Texas Attorney General Opinion ( 2014 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 8, 2014
The Honorable Rafael Anchia Opinion No. GA-1075
Chair, Committee on International Trade and
Intergovernmental Affairs Re: Simultaneous service in multiple official
Texas House of Representatives capacities of board members of the Maverick
Post Office Box 291 0 County Hospital District (RQ-1186-GA)
Austin, Texas 78768-2910
Dear Representative Anchia:
You ask whether members of the board of directors ("Board") for the Maverick County
Hospital District ("District") are prohibited from simultaneously serving Maverick County in
other official capacities by the Texas Constitution or the common-law doctrine of
incompatibility. 1
Article XVI, section 40(a) of the Texas Constitution provides that "[n]o person shall hold
or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI,
§ 40(a). An "emolument" for purposes of article XVI, section 40, is "a pecuniary profit, gain, or
advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig.
proceeding). The term "emolument" does not include the legitimate reimbursement of expenses.
See Tex. Att'y Gen. Op. No. GA-1036 (2014) at 2. A Board position is unpaid. TEX. SPEC.
DIST. CODE ANN. § 1118.056 (West 2013) (prohibiting compensation for Board members but
allowing reimbursement for necessary expenses). Because the position is not one "of
emolument," article XVI, section 40(a) of the Constitution does not bar a Board member from
serving in another official capacity.
Apart from the Texas Constitution, the common-law doctrine of incompatibility prohibits
dual public service in cases of self-appointment, self-employment, and conflicting loyalties.
Tex. Att'y Gen. Op. No. GA-0849 (2011) at 1. The conflicting-loyalties prong, about which you
ask, prohibits the simultaneous holding of two positions that would prevent a person "from
1
Letter from Honorable Rafael Anchia, House Comm. on Int'l Trade & lntergov'tl Affairs, to Honorable
Greg Abbott, Tex. Att'y Gen. at I (Feb. 5, 2014), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Rafael Anchia - Page 2 (GA-1075)
exercising independent and disinterested judgment in either or both positions."2 Tex. Att'y Gen.
Op. No. GA-0786 (2010) at 2 (relying on Thomas v. Abernathy Cnty. Indep. Sch. Dist., 290 S.W.
152 (Tex. Comm'n App. 1927, judgm't adopted)). As a threshold matter, in order for the
conflicting-loyalties prong of the common-law doctrine of incompatibility to apply, each position
must constitute an "office." Tex. Att'y Gen. Op. No. GA-0840 (2011) at 2. A public officer is
one to whom "'any sovereign function ofthe 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) (citation omitted). The District "is created
under the authority of Section 9, Article IX, Texas Constitution." TEX. SPEC. DIST. CODE ANN.
§ 1118.002 (West 2013). The District "is a public entity performing an essential public
function." ld § 1118.003. Board members are "elected by district voters" and serve a four-year
term. ld. § 1118.051(a)-(b). "The management and control of the district is vested in the
board," which "has full power to manage and control the district." !d. § 1118.104. Thus,
members of the Board are "public officers" for common-law incompatibility purposes.
Your first question involves a Board member serving as a commissioner of a municipal
housing authority. 3 Request Letter at 1. We have previously concluded that a housing authority
commissioner holds public office. See Tex. Att'y Gen. Op. No. JM-874 (1988) at 1- 2 (citiJlg
Hous. Auth. of Harlingen v. State ex. rel. Velasquez, 539 S.W.2d 911, 915 (Tex. Civ. App.-
Corpus Christi 1976, writ refd n.r.e.)). Because both positions about which you ask are public
offices, the common-law conflicting-loyalties analysis is appropriate.
In determining whether there are conflicting loyalties between two offices, "'the crucial
question'" is whether holding both offices is "'detrimental to the public interest or whether the
performance of the duties of one interferes with the performance of those of the other.'" Tex.
Att'y Gen. Op. No. GA-0786 (2010) at 2 (quoting State ex rei. Hill, 887 S.W.2d at 930). The
District's main role is "to provide hospital and medical care to the district's needy residents."
TEX. SPEC. DIST. CODE ANN. § 1118.10l(a) (West 2013). A municipal housing authority exists
to clear out unsanitary or unsafe housing and "provid[e] ... safe and sanitary housing for persons
of low income." TEX. Loc. Gov'T CoDE ANN. § 392.003(5) (West 2005). While the scope of
authority of the two entities does not overlap, the District is authorized to contract with housing
authorities and vice versa. See id. § 392.052(c) (authorizing a housing authority to contract with
a public entity to provide services for the occupants of a housing project); TEX. SPEC. DIST. CODE
2
You do not ask about the self-appointment or self-employment aspects of incompatibility, but given that
none of the positions at issue appoints or employs each other, neither aspect is applicable in this instance.
3
In the specific example you provide, the individual was a housing authority commissioner when he was
elected to the Board. Request Letter at 1. You have not asked, and we do not address, what effect, if any, the
election to the Board had on the housing authority position. In any event, briefing received by this office indicates
that the individual no longer serves as a housing authority commissioner. See Brief from Ricardo E. Calderon,
Maverick Cnty. Hosp. Dist. Bd. of Dir., at l-2 (Apr. 29, 2014) (on file with the Op. Comm.). Thus, we analyze
your question in general terms.
The Honorable Rafael Anchia - Page 3 (GA-1075)
ANN. § 1118.101(b) (West 2013) (requiring the District to "undertake any measure" deemed
"necessary to provide hospital and medical care for the district's needy inhabitants," including,
presumably, contracting with a housing authority). This office has recently concluded that where
two governmental bodies are authorized to contract with one another, there is a potential basis
for common-law incompatibility based on conflicting loyalties, depending on the particular facts.
Tex. Att'y Gen. Op. No. GA-0786 (2010) at 5. Resolving the incompatibility question with
respect to any particular contract would require an analysis of the public interest as a whole and
whether the same person could perform the duties of both offices without interfering with his or
her separate allegiance to each entity. Such a determination is a factual inquiry, which cannot be
resolved in the opinion process. Tex. Att'y Gen. Op. No. GA-1020 (2013) at 2-3. Thus, we
cannot determine as a matter of law whether common-law conflicting-loyalties incompatibility
would bar the dual service about which you ask.
Your second question involves a Board member serving as the county treasurer, which is
a public office. See Tex. Att'y Gen. Op. No. JC-0490 (2002) at 1 (relying on A/dine, 280 S.W.2d
at 583). We therefore apply the common-law conflicting-loyalties incompatibility analysis. 4
The duties of a county treasurer involve the receipt and disbursement of money belonging to the
county, which includes "direct[ing] prosecution for the recovery of any debt owed to the county"
and "supervis[ing] the collection of debt." TEX. Loc. Gov'r CODE ANN. § 113.902(a) (West
2008). The commissioners court, as "the executive head of the county," however, also has the
authority to initiate collection suits. Simmons v. Ratliff, 182 S.W.2d 827, 829 (Tex. Civ. App.-
Amarillo 1944, writ refd w.o.m.). This office has previously concluded that such non-exclusive
authority of the county treasurer does not rise to the level of a conflicting loyalty. See Tex. Att'y
Gen. Op. No. JC-0490 (2002) at 4 (citing Simmons, 182 S.W.2d at 829). We can discern no
other way in which the duties and functions of the two offices might overlap. 5 A court would
likely conclude that the doctrine of incompatibility does not bar a Board member from
simultaneously serving as the county treasurer.
4
You contend that the individual in question is not an "officer" because he is merely serving out the
remaining two years of a four-year term following a vacancy. Request Letter at 2. "[A]n essential element of an
office [is] that its duties are continuing in nature and not intermittent." Tex. Att'y Gen. Op. No. JM-847(1988) at 3
(citing Knox v. Johnson, 141 S.W.2d 698, 700 (Tex. Civ. App.-Austin 1940, writ refd). Something can be
"intermittent" when it "occur[s] at irregular intervals" or is "not continuous or steady." NEW OXFORD AMERICAN
DICTIONARY 907 (20 10). Two years of service as county treasurer is regular and continuous, and thus it is a public
office for purposes of our analysis.
5
The county treasurer "serves as treasurer of the construction and maintenance fund and the interest and
sinking fund of [a hospital] district" created under the authority of chapter 282 of the Health and Safety Code. TEX.
HEALTH & SAFETY CODE ANN. § 282.062(a) (West 2010). The District, however, is created by the Legislature
pursuant to special Jaw and not through chapter 282, and thus the Maverick County Treasurer does not serve the
District in this manner. TEX. SPEC. D!ST. CODE ANN. § 1118.002 (West 20 13).
The Honorable Rafael Anchia - Page 4 (GA-1075)
SUMMARY
The dual office-holding provision of article XVI, section
40(a) of the Texas Constitution does not prohibit a board member
of the Maverick County Hospital District from serving the county
in other official capacities.
Whether the conflicting-loyalties aspect of the common-
law doctrine of incompatibility prohibits a board member of the
Maverick County Hospital District from simultaneously serving as
a commissioner of a housing authority where the two entities have
contracted with each other depends on whether holding both
offices is detrimental to the public interest or whether the
performance of the duties of one interferes with the performance of
those of the other. Such a determination is a factual inquiry, which
cannot be resolved through the opinion process.
A court would likely conclude that the conflicting-loyalties
aspect of the common-law doctrine of incompatibility does not
prohibit a board member of the Maverick County Hospital District
from simultaneously serving as the Maverick County Treasurer.
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Becky P. Casares
Assistant Attorney General, Opinion Committee