### ATTORNEY GENERAL OF TEXAS GREG ABBOTT
September 30,2005

The Honorable Mark E. Price San Jacinto County Criminal District Attorney 1State Highway 150, Room 21 Coldspring, Texas 7733 1 Opinion No. GA-0360 Re: Whether the San Jacinto County Auditor may serve as the accountant for the San Jacinto County Emergency Services District (RQ-0329-GA)
Dear Mr. Price: You ask whether the San Jacinto County Auditor may serve as the accountant for the San Jacinto County Emergency Services District (the “ESD”). In particular, you raise the Texas Constitution’s bar against dual office holding, article XVI, section 40; the common-law doctrine of incompatibility; and two statutes, Local Government Code chapter 171, relating to local public officials’ conflicts of interest, and Local Government Code section 84.007, requiring the county auditor to take an oath that he will not be personally interested in a contract with the county.’ 

### I. Backmound Your query arises because the San Jacinto County Auditor may be hired by the ESD as its accountant. You are concerned that the county auditor as accountant for the ESD may audit his own books. You state that it “is a serious problem [that] the Auditor would be auditing the books he himself prepared. This negates the purpose of a second independent audit and could be construed as an appearance of impropriety.” Request Letter, supra note 1, at 2. A county auditor is appointed to a two-year term by the district judges with jurisdiction in the county. See 

### TEX.

Lot. GOV’T CODE ANN. $9 84.002-.004 (Vernon 1999 & Supp. 2004-05); see also id. 5 152.03 1 (Vernon 1999) (district judges determine the county auditor’s compensation, travel expenses, and other allowances). A county auditor’s main duties under the Local Governrnent Code include keeping and examining county financial records, see, e.g., id. $9 112.007, 114.024, 115.001, and verifying that county expenditures are authorized, see, e.g., id. 55 113.043, .064. The

‘SeeLetter from Honorable Mark E.Price, SanJacinto County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Mar. l&2005) [hereinafter Request Letter]; Letter from Honorable Mark E.Price, San Jacinto County Criminal District Attorney, to Nancy S.Fuller, Chair, Opinion Committee, Office ofAttorney General (Apr. 27, 2005) [hereinafter Supplemental Letter] (letters on file with Opinion Committee, aZso available at http://www.oag.state.tx.us).The Honorable Mark E. Price - Page 2 (GA-0360)

Local Government Code expressly provides that aclaim, bill, or account against the county may not be paid until it has been examined and approved by the county auditor. See id. 9 113.064. A “county auditor may not audit or approve aclaim unless the claim was incurred asprovided by law.” Id. § 113.065. “The language of these statutes is mandatory. They impose on the auditor the responsibility, before approving a claim, to determine whether it strictly complies with the law governing county finances.” Smith v.McCoy, 533 S.W.2d 457,459 (Tex. Civ. App.-Dallas 1976, writ dism’d) (addressing former articles 1660 and 1661, Revised Civil Statutes, the statutory predecessors to Local Government Code sections 113.064-.065); see also Crider v. Cox, 960 S.W.2d 703,706 (Tex. App.-Tyler 1997, pet. denied) (“A claim against the county may not be approved by the Auditor unless it was incurred in accordance with the law.“) (citing Local Government Code section 113.065). You inform us that the ESD, which is located wholly within San Jacinto County, “was formed under [chapter] 775 of the Health and Safety Code. Based upon an election in 2001, the Rural Fire District was changed to an emergency services district.” Supplemental Letter, supra note 1,at 1;see also 

### TEX.

HEALTH& SAFETY

CODEANN. § 775.026(a) (Vernon Supp. 2004-05) (“Each rural fire prevention district created under former Chapter 794 is converted to an emergency services district operating under this chapter.“). A chapter 775 emergency services district located wholly within a county, such as the ESD, is governed by aboard of commissioners appointed by the commissioners 

### court. See TEX. HEALTH & SAFETY

CODEANN. § 775.034 (Vernon Supp. 2004-05). A district may “enter into and perform necessary contracts,” including contracts with other public entities. See id. 5775.03 1(a)(2), (9)-( 10). Chapter 775 also generally authorizes a district to “appoint and employ necessary officers, agents, and employees.” Id. §775.03 l(a)(3). It does not specifically require an emergency services district to employ an accountant or establish duties for such a position. We assume that the ESD’s accountant is not a district officer but an employee who serves at the district board’s will. Chapter 775 requires the board to provide the commissioners court with an annual report regarding the district’s financial condition and an audit report. See id. @ 775.036(a)(4) (Vernon 2003), .082(b).’ In addition, section 775.082 expressly contemplates that the county auditor will have access to the district’s records and may be required to audit the district: (a) The county auditor

. . . shall have access to the books, records, officials, and assets of the district. (b) A district shall prepare and file with the commissioners court
. . . on or before June 1 of each year an audit report of the district’s fiscal accounts and records. The audit shall be performed and the report shall be prepared at the expense of the district. The

2Asamended byAct ofMay 13,2005,79th Leg., R.S., ch. 120,s 2,2005 Tex. Sess.Law Serv. (effective Sept. 1,2005).The Honorable Mark E. Price - Page 3 (GA-0360)

county auditor, with the approval of the commissioners court, shall adopt rules relating to the format of the audit and report. . . . . (c) The person who performs the audit and issues the report must be an independent certified public accountant or firm ofcertified public accountants licensed in this state, unless the commissioners court by order requires the audit to be performed by the county auditor at least 120 days before the end of the district’s fiscal year. (d) The commissioners court, on application made to the commissioners court by the district, may extend up to an additional 30 days the deadline for filing the audit report. (e) If the district fails to complete and file the audit report within the time provided by Subsection (b) or (d), the commissioners court may order the county auditor to perform the audit and issue the report.
. . . . (f) The district shall pay all costs incurred by the county auditor to perform an audit and issue the report required by this section, unless otherwise ordered by the commissioners court[.] Id. 5 775.082.3 You state that the ESD “receives property tax money from San Jacinto County at the rate of ten cents on the dollar.4 Seven cents ofthe collected money is used toward ambulance expenses and three cents is used towards the Fire Departments within San Jacinto County.” Supplemental Letter, supra note 1, at 1(footnote added). San Jacinto County and the ESD “have an interlocal agreement for Buildings, Maintenance and Support and a contract for providing fire suppression and rescue services.” Id. II. Analysis A. Article XVI, Section 40(a) Article XVI, section 40(a) of the Texas Constitution provides in pertinent part that

“[n]o person shall hold or exercise atthe same time, more than one civil office of emolument.” 

### TEX. CONST. art. XVI, 5 40(a). As the Texas Supreme Court observed in Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955), “the determining factor which distinguishes a

31d. 4TheESD assesses taxes andthe county tax assessor “isthe assessor-collector for the district.” TEX.HEALTH & SAFETY

CODEANN. § 775.074(a), (e) (Vernon 2003); see also TEX.CONST.art. III, 548-e.The Honorable Mark E. Price - Page 4 (GA-0360)

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 ofothers.” Aldine, 280 S.W.2d at 583. An “emolument” for purposes of article XVI, section 40 is any “pecuniary profit, gain or advantage.” Ivwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944), overruled on other grounds, Angel v. State, 740 S.W.2d 727 (Tex. Crim. App. 1987). A county auditor is apublic officer and holds acivil office of emolument under article XVI, section 40. See Tex. Att’y Gen. Op. No. JM-333 (1985) at 1. However, we assume that the accountant for the ESD serves as an employee at the district board’s will, see TEX.HEALTH& SAFETYCODEANN. $5775.03 l(a)(3), .036(a)(5) (Vemon Supp. 2004-05), and does not exercise

“any sovereign function ofthe [ESDI

. ..largely independent ofthe control of others,“5 and therefore does not hold a civil office of emolument in that capacity. Assuming this is the case, article XVI, section 40(a) does not bar the county auditor from serving as the ESD’s accountant. See, e.g., Tex. Att’y Gen. Op. Nos. GA-0273 (2004) at 2 (“Because an instructor at a community college does not hold an office of emolument, article XVI, section 40 does not bar a district attorney from simultaneously holding the position of instructor at a community college.“), GA-0214 (2004) at 5 (“Unless apeace officer holds a ‘civil office’ within Texas Constitution article XVI, section 40, that provision does not bar him from being employed and commissioned by two law enforcement agencies.“). B. Common-Law Incompatibility The common-law doctrine ofincompatibility is“not asingle doctrine,” but comprises three aspects: (1) conflicting loyalties; (2) self-appointment; and (3) self-employment. See Tex. Att’y Gen. Op. No. GA-01 32 (2003) at 2. You are concerned that the county auditor’s service as accountant for the ESD would violate conflicting-loyalties incompatibility. See Request Letter, supra note 1, at 2. However, the first two strands apply when a person holds two public offices, prohibiting public officers from holding offices with conflicting public duties and precluding public bodies from appointing one of their members to another office. See Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928); Thomas v.Abernathy County LineIndep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App. 1927, judgrn’t adopted); Tex. Att’y Gen. Op. Nos. GA-0132 (2003) at 2, JC-0270 (2000) at 2 (,“conflicting loyalties’ incompatibility does not prohibit an individual from holding two positions where one of those positions does not constitute an ‘office”‘). Assuming that the ESD accountant does not hold apublic office, neither strand bars the county auditor from serving in that position.In addition, we note that the last strand, self-employment, arises when a person holds an office and an employment. Itprevents apublic officer from serving in an employment position that the public officer supervises. See Tex. Att’y Gen. Op. Nos. GA-0132 (2003) at 2, JC-0225 (2000) at 2 (common-law doctrine of incompatibility bars one person from holding “an office and employment if the office has a supervisory role over the employment”). The county auditor, who must have access to the ESD’s records, adopts rules relating to the district’s audit and report,

‘Aldine, 280 S.W.2d

at583.The Honorable Mark E. Price - Page 5 (GA-0360)

and may be charged with auditing the district, clearly has supervisory authority over the ESD’s finances and financial records. See TEX.HEALTH& SAFETYCODEANN. $775.082! However, the ESD accountant is employed by the district and presumably serves at the board’s will. See id. 5775.031(a)(3) (Vemon Supp. 2004-05). The county auditor does not employ the ESD’s accountant and has no direct authority over that position. Accordingly, self-employment incompatibility does not preclude the county auditor from serving as the ESD accountant.

c. Local Government Code, Chapter 171 Chapter 171ofthe Local Government Code regulates local public officials’ conflicts of interests. See TEX.Lot. GOV’TCODEANN. $5 171.001-.OlO (Vernon 1999 & Supp. 2004-05). It generally requires a local public official with a substantial interest in abusiness entity to file with the governmental entity’s official record keeper “an affidavit stating the nature and extent of the interest” before the governmental entity votes on or decides a matter involving the business entity and to abstain from participating in the matter if “the action

. . .will have a special economic effect on the business entity that is distinguishable from the effect on the public.” Id. 9 171.004(a)(l) (Vernon 1999). Section 171.007(a) provides that chapter 171 “preempts the common law of conflict of interests as applied to local public officials.” Id. 5 171.007(a). Thus, chapter 171 repeals the common-law rule that barred local governmental bodies from contracting with a business entity in which a member of the governmental body had a personal economic interest and made such contracts void. See City ofEdinburg v. Ellis, 59 S.W.2d 99, 99-100 (Tex. Comm’n App. 1933, holding approved); Delta Elec. Constr. Co. v. City ofSan Antonio, 437 S.W.2d 602,609 (Tex. Civ. App.-San Antonio 1969, writ ref d n.r.e.); Meyers v. Walker, 276 S.W. 305, 307 (Tex. Civ. App.-Eastland 1925, no writ) (holding apublic contract invalid because amember ofthe contracting governmental body had a personal economic interest in it). A county auditor is a “local public official”subject to chapter 171,7and is therefore required to comply with its requirements when taking an action that will affect a business entity in which he or she has a substantial interest. See Tex. Att’y Gen. Op. No. DM-303 (1994) at 2-3. You indicate that the ESD accountant position is paid, but you understand that the county auditor’s compensation as ESD accountant would be less than ten percent ofthe county auditor’s gross income, see Request Letter, supra note 1,at 1,and therefore would not constitute a substantial interest under chapter 171. See TEX. LOC. GOV’T CODE ANN. 9 171.002 (Vernon 1999) (defining “substantial interest”). However, whether the county auditor’s ESD salary would exceed ten percent of his gross income is immaterial because the ESD does not constitute a “business entity” for purposes of chapter 171.

6Seesup-a note 2.

‘SeeTEX.LOC. GOV’T CODEANN, 4 171 .OOl( 1)(Vernon 1999)(“‘Localpublicofficial’meansamember of the governing body or another officer, whether elected, appointed, paid, orunpaid,ofanydistrict(including a school district), county, municipality, precinct, central appraisal district, transitauthority ordistrict, orother local governmental entity who exercises responsibilities beyond those that are advisory innature.“).The Honorable Mark E. Price - Page 6 (GA-0360)

A chapter 775 emergency services district “is a political subdivision of the state.” TEX. HEALTH & SAFETY CODE ANN. 5 775.03 l(a) (Vernon Supp. 2004-05). The term “business entity” is defined in chapter 171of the Local Government Code as “a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized by law

.” TEX.LOC. GOV’TCODEANN. 5 171.001(2) (Vernon 1999). This officehas held that local governmental entities, like counties, cities and school districts, are not business entities under chapter 171. See Tex. Att’y Gen. Op. Nos. GA-0195 (2004) at 3 (concluding that a city is not a business entity under chapter 171, and a local public official who is employed by a city is not required under chapter 171to disclose his interest in and abstain from voting on matters involving the city), GA-003 l(2003) at 2 (concluding that aschool district is not abusiness entity under chapter 171)’ JC-0061 (1999) at 3 (concluding that a county is not a business entity under chapter 171), JM-852 (1988) at 3-4 (state university is not abusiness entity under chapter 171). For example, in Attorney General Opinion DM-267, this office concluded that a city is not a business entity for purposes of chapter 171 of the Local Government Code. See Tex. Att’y Gen. Op. No. DM-267 (1993) at 2. Rather, it is “‘[a] political entity or subdivision for local governmental purposes.“’ Id. (quoting Black’s Law Dictionary 244 (6th ed. 1990)).8 Based on this authority, we conclude that an emergency services district, a political subdivision of the state created under and governed by chapter 775 of the Health and Safety Code, is not abusiness entity under chapter 171. Accordingly, if the county auditor accepts employment with the ESD, chapter 171would not regulate the county auditor with respect to his ESD salary. See Tex. Att’y Gen. Op. No. GA-0195 (2004) at 2. D. Oath of Office Provision You also raise Local Government Code section 84.007(b), which requires a county auditor to take a special oath that he will not be interested in county contracts. See Request Letter, supra note 1,at 2. Section 84.007(b) provides that “[tlhe county auditor must take the official oath and a written oath

. . .that states
. . .that he will not be personally interested in a contract with the county.” TEX.Lot. GOV’T CODE ANN. 8 84.007(b) (Vemon 1999). Opinions on section 84.007(b) and its predecessor have related to county contracts with the county auditor or with aprivate entity in which the auditor had an interest involving ownership or control. See Tex. Att’y Gen. Op. Nos. WW- 1241 (1962) at 4 (county auditor could not own stock in oil company with which county has business dealings, nor could he own stock or serve as director ofbank serving as county depository), V-38 1(1947) at 6 (county auditor could not sell goods, services, or materials to the county); see also Tex. Att’y Gen. LO-89-l 1, at 1 (section 84.007(b) prohibits county auditor from selling road materials to the county).

“‘[T]he phrase ‘other entity recognized by law’insection 17l.OOl(2) ‘shouldberead torefer toprivate entities organized inaform authorized orrecognized bythe legislature to carry outpurposes similarto thepurposes’ ofthe listed entities.” Tex. Att’y Gen. Op. No. JC-0061 (1999) at 3 (quoting Tex. Att’y Gen. Op. No. JM-852 (1988) at4).The Honorable Mark E. Price - Page 7 (GA-0360)

We will consider whether the county auditor’s salary for employment with the ESD would be a personal interest in the county’s contracts with the ESD.9 No judicial decisions or attorney general opinions have considered whether asalary received by acounty auditor from agovernmental entity that contracts with the county would be apersonal interest in a contract with the county under section 84.007(b). However, this office has determined for purposes of the common-law conflict of interest rule that apublic official employed by aprivate entity has an interest in apublic contract between the private entity and the governmental body. The common-law rule bars apublic official who has individual or shared authority to enter into public contracts from “directly or indirectly” having a pecuniary interest in such contracts. Meyers, 276 S.W. at 307. Ifthe public official has apecuniary interest in such apublic contract, the “contract so made is violative of the spirit and letter of our law, and is against public policy.” Id. (citing Knippa, 66 S.W. at 324). See also Ellis, 59 S.W.2d at 99-100, Bexar County v. Wentworth, 378 S.W.2d 126, 128-29 (Tex. Civ. App.-San Antonio 1964, writ ref d n.r.e.); see also TEX.LOC. GOV’T CODE ANN. $ 81.002(a)( 1) (Vernon Supp. 2004-05) (member of the commissioners court must take an oath that he “will not be interested, directly or indirectly, in a contract with or claim against the county except.
. . a contract or claim expressly authorized by law”). See also Anderson v. Vood, 152 S.W.2d 1084, 1085 (Tex. 1941) (commissioners court “alone has authority to make contracts binding on the county, unless otherwise specifically provided by statute”). Thus, this office has determined that apublic officer employed by aprivate business entity has an interest in the business entity, so that a governmental body may not contract with abusiness entity that employs one of its members. See, e.g., Tex. Att’y Gen. Op. No. JC-0507 (2002) at 1,9 (state university may not contract with abank that employs a member of the board of regents as an officer); JM-884 (1988) at 2-3 (Texas Commission for the Deaf may not contract with a local nonprofit entity that employs acommission member in apaid position); JM- 171(1984) at 3 (city council may not contract with firm that employs acity council member); H-9 16 (1976) at 3 (a school district may not contract with a company that employed a member of the district’s board of trustees in a managerial capacity, even though the trustee derived no direct financial benefit from the contract); Tex. Att’y Gen. LO-93-O 12, at 3 (state university may not contract with law firm that employs regent as partner). We will consider whether the reasoning of these opinions applies to employment with a governmental entity. Attorney General Opinion H-91 6 was the first opinion of this office to determine that the common-law conflict ofinterest rule prohibited agovernment entity from contracting with abusiness that employed amember ofthe entity’s governing body. See Tex. Att’y Gen. Op. No. H-9 16 (1976) at 2-3. Based on a review of out-of-state cases, it concluded that the common-law rule prevented a school district from contracting with a company that employed a school board member in a managerial capacity. See id. at 3. In reaching this conclusion, Attorney General Opinion H-916 emphasized the success of the company and the employee’s interest in the financial well-being of the company. See id. at 2-3. The opinion quoted aWisconsin case stating that an individual “‘had

‘While asalary or other pecuniary benefit received from the ESD couldbeapersonalinterest inacontract, the duties performed by the ESD are not such aninterest.The Honorable Mark E. Price - Page 8 (GA-0360)

such an interest in the business and welfare of his company as would naturally tend to affect his judgment. “’ Id. at 2 (quoting from Edward E. Gillen Co. v. City ofMilwaukee, 183 N.W. 679,68 1 (Wis. 1921)). “If his company prospered, ‘his service and salary might be continued, and

. . . he might be promoted. “’ Id. It also relied upon Stockton Plumbing & Supply Co. v. Wheeler, 229 P. 1020 (Cal. Dist. Ct. App. 1924), in which a city awarded a contract to a company that employed a city council member. See Stockton, 229 P. at 1021-22. The court in Stockton determined that the contract was invalid because of the city councilman’s interest in it. Although “he would not derive direct pecuniary gain from the contract, he certainly would indirectly be so benefitted, since upon the success ofpetitioner’s business financially primarily depends the continued tenure ofhis position and the compensation which he receives.” Id. at 1024 (quoted by Attorney General Opinion H-9 16 (1976) at 2). An employee’s interest in his company’s success and financial well-being, while relevant to acounty contract with aprivate company that employs amember of the commissioners court, is not relevant to contracts under the Interlocal Cooperation Act (the “Act”). The purpose of the Act is “to increase the efficiency and effectiveness of local governments”’ and tax-supported governmental entities like the ESD” and the county contract with one another under it to facilitate joint efforts toward common goals, not to generate profits. TEX. GOV’T CODE ANN. $8 791 .OOl (Vernon 2004) (stating purpose of the Act); 79 1.Ol 1(e) (“[a]n interlocal contractual payment must be in an amount that fairly compensates the performing party for the services or functions performed”). The parties to an interlocal contract may “create an administrative agency [or] designate an existing local government
. . . [t]o supervise the performance of [the] contract.” Id. § 791.013(a). Thus, an interlocal contract does not involve the kind ofseparation between contracting parties that isrequired when a governmental entity contracts with a private company. Moreover, the predecessor ofLocal Government Code section 84.007(b) as adopted in 1905, provided that the auditor shall include in his oath “that he will not personally be interested in any contract with the county.“” This requirement, which has been carried forward virtually unchanged,‘* was adopted well before the advent of interlocal contracting. The Interagency Cooperation Act, which authorizes certain contracts between state agencies, was adopted in 1953 because “the present law does not authorize interagency reimbursements for services which will increase the efficiency and economy of governmental administration.“i3 The predecessor of Agriculture Code section 201.152 authorizing counties, cities, and other political subdivisions to enter into contracts with soil conservation districts to establish, operate, and maintain flood prevention and soil conservation

“See TEX.HEALTH& SAFETYCODEANN.$6 775.03l(a)(5) (Vemon Supp. 2004-05), .074 (Vernon 2003). “See Act approved Apr. 22, 1905, 29th Leg., R.S., ch. 161, $4, 1905Tex. Gen. Laws 381, 381-82. 12See Act of June 7, 1955, 54th Leg., R.S., ch. 414, §2, 1955Tex. Gen. Laws 1117, 1118 (amending article 1649,Revised Civil Statutes); Act ofMay 1, 1987,7Oth Leg., R.S., ch. 149, !$1,sec. 84.007(b), 1987Tex. Gen. Laws 707, 797 (codified at TEX.Lot. GOV’T CODEANN.$ 84.007(b)). 13Act ofMay 19, 1953, 53rd Leg., R.S., ch. 340 $8, 1953Tex. Gen. Laws 841, 843; see TEX.GOV’TCODE ANN.$0 771.OO

l-.0 10(Vernon 2004) (chapter 771,Interagency Cooperation Act).The Honorable Mark E. Price - Page 9 (GA-0360)

projects was adopted in 1959 because there was “not an adequate provision in the law” authorizing such agreements. l4 The legislature did not enact the statutory predecessor to the Interlocal Cooperation Act until 197 1.I5 The 1905 legislature that adopted the predecessor of the auditor’s oath in section 84.007(b) could not have understood it to apply to interlocal contracts, and the oath provision has never been modified to include such contracts. See TEX.GOV’T CODEANN. 9 3 11.023 (Vernon 2005) (“In construing a statute
. . . a court may consider among other matters the: (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; [and] (4) common law or former statutory provisions, including laws on the same or similar subjects

. . . .“). For these reasons, we conclude that a county auditor’s oath that he or she will not be “personally interested in acontract with the county” does not speak to county contracts with other governmental entities. We conclude that a county auditor who is employed by an ESD that contracts with the county is not thereby “personally interested in a contract with the county” in violation of the special oath required by Local Government Code section 84.007(b). E. Other Considerations We finally address your concern that the county auditor, if he accepts employment as an accountant by the ESD, may audit his own books, thus creating the appearance of impropriety. A county auditor is not subject to Occupations Code chapter 901, which regulates the practice of public accountancy. See TEX.Oct. CODEANN. §901.004(a) (Vernon 2004) (chapter 901 does not
“restrict an official act of aperson acting in the person’s capacity as . . . an officer of the state or of a county, municipality, or other political subdivision, including a county auditor

. . . or . . . an assistant, deputy, or employee” of a county auditor). However, you inform us that the county auditor is a certified public account. See Supplemental Letter, supra note 17at 1. Chapter 90 1of the Occupations Code authorizes the Texas State Board of Public Accountancy (the Board) to regulate the practice of public accountancy and to adopt rules of professional conduct. See TEX.Oct. CODEANN. $5 901.003(a) (Vernon 2004) (defining “practice of public accountancy”), 901.156 (the board “shall adopt rules of professional conduct to: (1) establish and maintain high standards of competence and integrity in the practice of public accountancy; and (2) ensure that the conduct and competitive practices of license holders serve the purposes of this chapter and the best interest of the public.“). See also 22 TEX.ADMIN. CODE$§ 50 1.5l-.94 (2005) (chapter 501 concerning rules of professional conduct); id. 5 501.73 (certificate holder “shall maintain integrity and objectivity [and] shall be free ofconflicts ofinterest” in the performance ofprofessional services). We suggest that the county auditor consult the Board

14See Act ofMay 6, 1959,56th Leg., R.S., ch. 313,s 6,1959 Tex. Gen. Laws 686,687 (enacting former article 1109k, Revised Civil Statutes), recodzjied as amended byAct of May 22, 1981, 67th Leg., R.S., ch. 388, 9 1, sec. 201.152, 1981Tex. Gen, Laws 1015, 1481 (section 201.152, Agriculture Code). “See Act of May 20, 1971, 62d Leg., R.S., ch. 513, 1971 Tex. Gen. Laws 1751 (enacting former article 4413(32c), Revised Civil Statutes), recodified as amended byAct ofApr. 2, 1991, 72d Leg., R.S., ch. 38, 5 1, sets. 791.001-.029, 1991Tex. Gen. Laws 432,461-66.The Honorable Mark E. Price - Page 10 (GA-0360)

regarding compliance with Occupations Code chapter 901 and the Board rules applicable to a certified public accountant (“CPA”), particularly with respect to his prospective employment with the ESD. See id. $5 526.1-.3 (the Board may issue opinions upon the written request of any person). A county auditor must be “a competent accountant with at least two years’ experience,” “competent in public business details;” and “a person of unquestionably good moral character and intelligence,” and the district judges shall carefully investigate and consider aperson’s qualifications before appointing him as auditor. TEX.LOC.GOV’T CODE ANN. § 84.006 (Vernon 1999). If the county auditor accepts employment as accountant for the ESD, the district judges who appointed him may review his performance in light of this employment. A county auditor may be removed from office “if, after due investigation by the district judges who appointed the auditor, it is proven that the auditor: (1) has committed official misconduct; or (2) is incompetent to faithfully discharge the duties of the office of county auditor.” Id. 4 84.009(a)? It would be for the district judges to determine in the first instance whether a county auditor has committed official misconduct or is incompetent. In addition, the district judges have no obligation to reappoint the auditor at the expiration of his current two-year term. See id. 5 84.004 (“The term of office of a county auditor is two years.“); GuerP-ero v.Refugio County, 946 S.W.2d 558,570 (Tex. App.-Corpus Christi 1997, no writ) (holding that a county auditor “was apublic official who did not have aproperty interest in his position beyond the end of the last two-year term to which he was appointed”). Finally, under the Local Government Code, the county auditor’s work may be audited by an outside accountant in certain circumstances. Ifthe commissioners court is concerned that the county auditor has not properly carried out his duties, the court may order an independent audit. See TEX. LOC.GOV’T CODE ANN. 5 115.03 1(Vernon 1999). Alternately, a district judge may order a special audit upon receiving apetition signed by at least 30 percent of the county voters. Id. 8 115.032.

16Theterm “official misconduct” is defined in the general removal provisions for county officers to mean
“intentional, unlawful behavior relating to official duties by anofficer entrusted with the administration ofjustice orthe execution ofthe law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a dutyimposed onthe officer by law.” TEX.LOC.GOV’TCODEANN. 687.01l(3) (Vernon 1999); see also id. $84.0085(b) (“Forpurposes ofremoval for incompetency under another law, ‘incompetency’ inthe case ofacounty auditor includes the failure to complete the [continuing professional education] courses in accordance with this section.“).The Honorable Mark E. Price - Page 11 (GA-0360)

SUMMARY Neither article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility bars a county auditor from serving as the accountant for an emergency services district, assuming the accountant is an at-will district employee and not a district officer. An emergency services district, a political subdivision of the state created under and governed by chapter 775 of the Health and Safety Code, is not a business entity under chapter 171of the Local Government Code, and chapter 171does not affect acounty auditor’s employment with such a district. The oath of office set forth in section 84.007 of the Local Govemrnent Code requires acounty auditor to state in writing that he or she “will not be personally interested in a contract with the county.” TEX.Lot. GOV’TCODEANN.884.007(b)(2) (Vernon 1999). This provision does not apply to a contract between the county and another local government such as an emergency services district. A certified public accountant (“CPA”) is subject to rules of the Texas State Board of Public Accountancy concerning ethical conduct for accountants. The application ofthese rules to aCPA who serves as county auditor and as an accountant for an ESD is a matter for the Texas State Board ofPublic Accountancy in the first instance. The district judges who appointed the county auditor have statutory authority to remove the county auditor for official misconduct or incompetence. The county auditor’s work may be audited by an outside accountant in certain circumstances.

DREG @OTT Attorney General of Texas

BARRY R. MCBEE First Assistant Attorney General NANCY S. FULLER Chair, Opinion Committee Susan L. Garrison Assistant Attorney General, Opinion Committee