j= OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

The Honorable Michael A. Stafford 

Harris County Attorney 

10 19 Congress, 15 th Floor 

Houston, Texas 77002- 1700 

November 6,200l 

Opinion No. JC-0430 

Re: Whether a member of the Texas House of 

Representatives may be employed as an assistant 

county attorney (RQ-0395-JC) 

Dear Mr. Stafford: 

You have requested our opinion as to whether a member of the Texas House of 

Representatives may be simultaneously employed as an assistant county attorney. For the reasons 

set forth below, we conclude that he may not be so employed. 

The last sentence of article XVI, section 40 of the Texas Constitution provides: 

No member of the Legislature of this State may hold any other office 

or position of profit under this State, or the United States, except as 

a notary public if qualified by law. 

TEX. CONST. art. XVI, 5 40. Both the courts and the attorney general have consistently said that an 

assistant district attorney is an “employee” rather than an officer. See Powell v. State, 898 S.W.2d 

821, 825 (Tex. Crim. App. 1995); Tex. Att’y Gen. LO’s 96-148, 89-082,88-019. We believe it is 

equally clear that an assistant county attorney does not hold an “office” for purposes of article XVI, 

section 40. 

It does not follow, however, that an assistant county attorney does not hold a “position of 

profit.” A “position of profit” has been described as a “salaried nontemporary employment.” See 

Tex. Att’y Gen. Op. No. H-1304 (1978) at 2; see also Begich v. Jeffrson, 441 P.2d 27 (Alaska 

1968). Furthermore, a compensated assistant county attorney holds a position of profit “under this 

State.” In Willis v. Potts, 377 S.W.2d 622 (Tex. 1964), the Texas Supreme Court specifically 

determined that a member of a city council holds an office “under this state.” Likewise, a school 

district employee holds a “position of profit under this state.” Tex. Att’y Gen. LO-93-03 1, at 2. In 

our opinion, an assistant county attorney who is compensated from county funds unquestionably 

holds a “position of profit under this State.” Id. 
The Honorable Michael A. Stafford - Page 2 (JC-0430) 

We note two opinions in which a legislator’s holding of two different positions was held not 

to contravene article XVI, section 40, in circumstances somewhat similar to those you posit. In 

Attorney General Letter Opinion 93-03 1, this office said that a legislator was not as a matter of law 

prohibited from acting in the capacity of “independent contractor” for a school district on a part-time 

basis. Id. Similarly, in Attorney General Letter Opinion 95-022, the attorney general held that a 

legislator was not precluded from working as an independent contractor on a part-time basis for a 

county government. Tex. Att’y Gen. LO-95-022. Both opinions indicated that ultimate resolution 

ofwhether the legislator in fact qualified as an “independent contractor” would require the resolution 

of factual matters beyond the purview of the opinion process. 

We do not believe, however, that an assistant county attorney may properly be classified as 

other than an “employee.” Section 4 1.102 of the Government Code provides that “[a] prosecuting 

attorney may empZoy the assistant prosecuting attorneys, investigators, secretaries, and other office 

personnel that in his judgment are required for the proper and efficient operation and administration 

of the office.“l TEX. GOV’T CODE ANN. 5 41.102(a) (Vernon Supp. 2001) (emphasis added). We 

conclude that a state representative may not be employed as an assistant county attorney. 

‘Although the Harris County Attorney does not prosecute criminal cases, TEX. GOV’T CODE ANN. fj 45.201 

(Vernon 1988), section 4 1.101 defines “prosecuting attorney” for purposes of chapter 4 1 of the Government Code as 

“a county attorney, district attorney, or criminal district attorney.” Id. $ 4 1.101. 
The Honorable Michael A. Stafford - Page 3 (JC-0430) 

SUMMARY 

A member of the Texas House of Representatives is 

prohibited by article XVI, section 40 of the Texas Constitution from 

simultaneously serving as an assistant county attorney. 

JOHN CORNYN 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee