The Attorney General of Texas 

August 6, 1979 

MARK WHITE 

Attorney General 

723 Main. suite 810 

HO”*to”. TX. 7ma? 

7w2aom~ 

Km Broadway. svite 312 

L”bbock TX. m401 

mv7.7~5238 

Honorable Richard G. Morales, Sr. 

County Attorney of Webb County 

1810 San Bernard0 

Laredo, Texas 78040 

Opinion No. MW- 3 9 

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: 

You have asked whether the dual office holding prohibition of the state 

constitution is applicable to the Director of Operations for the Webb County 

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 1978 the Director won a nonpartisan 

election to a four year term on the 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 $150 a month. 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& 516 S.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. 113 
Honorable 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 a fixed term. See Tex. Const. art. 16, S 30. 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, S 1. 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, S 24. 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. In Letter Advisory No. 

86 it was said: 

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 of the 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 or recusal.. . . 

See also Thomas v. Abernathy County Line Ind. Sch. Dist., 290 S.W. 152 (Tex. Comm’n App. 

-State v. Martin, 51 S.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 as they 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 CETA program. 

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

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by David B. Brooks 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Walter Davis 

Susan Garrison 

Rick Gilpin 

William G Reid 

Bruce Youngblood 

p. 115