# The Attorney General ofTexas
August 6, 1979 MARK WHITE Attorney General

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svite312 L”bbockTX.m401 mv7.7~5238 Honorable Richard G.Morales, Sr. County Attorney of WebbCounty 1810San Bernard0 Laredo, Texas 78040 Opinion No. MW- 39
Re: Whether a person may be

‘Director of Operations of a CETA
swam administered by the county and also serve as a city councilman.
Dear Mr. Morales:
Youhave asked whether the dual office holding prohibition of the state constitution isapplicable to the Director of Operations for the WebbCounty CRTA program who is also a member of the city council for the City of Laredo. The Director of Operations has been serving in that capacity since 1974. He was one of three people who were selected by the county commissioners court to serve as administrators of the county’s CETA program. His salary of $20,500 is paid wholly from federal funds He reports to the Executive Director of the program. Eighteen discrete areas of the progratis operations are under the supervision of the Director of Operations. Among the activities with which he is involved are on-the-job training, public service projects, youth training and employment, classroom education, counseling and various support services offered to the particiBants in the CETA program. In 1978the Director won a nonpartisan election to afour year term onthe Laredo city council. With exceptions not relevant here, article 16,section 40 of the Texas Constitution forbids the, holding of two “civil offices of emolument” concurrently by the same person. Members of the city council are paid a salary of $150amonth. Such office, therefore, is clearly one of emolument. Attorney General Letter Advisory Nos. 154(1978);85 (1974); 19(1973). The question then becomes whether the Director occupies a“civil office.”

Gdlev, 280 SW.2 Ti In our opinion the Director of Operations does not occupy an “office.” See Green v. Stews& 516S.W.2d 133(Tex. 1974);Aldine 2nd.Sch. Dist. v.

Id 578 (Tex. 1955); Kimbrough v. Barnett, 55 S.W. 120 -0); Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi

p. 113Honorable Richard G.Morale%.Sr. - Page .Two (Mw-39)

1976, no writ); Tilley v. Rogers, 405 S.W.td 220 (Tex. Civ. App. - Beaumont 1966, writ ref’d n.r.e.); Cib 303 S.W.2d 485 (Tex. Civ. App. - Beaumont 1957, writ ref’d n.r.e.l; Attorney General Letter Advisory Nos 85, 81(1974); Attorney General Opinions V-308 (1947);G-6458 (1945)(executive officer for the State Board for Vocational Education is not a civil office holder). The position of Director of Operations does not possess the elements attributed to an office as discussed in the above cases. The position is not established by law nor does it have afixed term. See Tex. Const. art. 16,S30. The duties of the position are not defined by law. The Director is not required to take an official oath nor required to execute a bond. See Tex. Const. art. 16,S1. Qualifications for the position are not established by law. Hisremoval from employment need not be pursuant to the constitutional provisions for the removal of officers. See Aldine Ind. Sch. Dlst. v. Standley, supra; Tex. Const. art. 5, S24. No facts have beenpresented which establish that he exercises any portion of the sovereign authority largely independent of the control of others. In brief, we believe that the city councilman does not breach the dual office holding prohibition by serving in his present capacity with the county CETA program. Finally, the question of incompatibility must be considered. InLetter Advisory No. 86it wassaid:Whether two offices are incompatible is usually a question of

fact, and incompatibility under the law exists when the faithful and independent exercise of one office would necessarily interfere with or control the faithful and independent exercise ofthe other.

. . . . [Nlot every conflict of interest, or possibility thereof, results in legal incompatibility. Conflicts can be avoided on occasion by the application of intervening statutes, ordinances, or rule% or by abstention orrecusal..

. . See also Thomas v. Abernathy County Line Ind. Sch. Dist., 290S.W.152(Tex. Comm’n App. -State v. Martin, 51S.W.2d 815(Tex. Civ. App. - San Antonio 1932,no writ). Under the facts you have presented, there is no apparent incompatibility, however, since the Attorney General does not find facts in the opinion process, you should examine any other relevant facts asthey develop in light of these cases and the letter advisory to determine if there Is incompatibility or a conflict. See Attorney General Opinion M-714 (1970) relating to contractual relationships between the city and the county CETAprogram. SUMMARY
A city councilman serving as the Director of Operations for a county CETA program does not constitute dual office



# 0&w?=
MARK WHITE Attorney General of Texas

P. 114Honorable Richard G.Morales, Sr. - Page Three (m-39)

JOHN W.FAINTER, JR. First Assistant Attorney General
TED L.HARTLEY Executive Assistant Attorney General Prepared byDavid B.Brooks Assistant Attorney General APPROVED: OPINION COMMITTEE
C. Robert Heath, Chairman David B.Brooks Walter Davis Susan Garrison Rick Gilpin William GReid Bruce Youngblood

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