j= OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS JOHN CORNYN

The Honorable Michael A. Stafford Harris County Attorney 1019 Congress, 15th 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 ofthe Legislature ofthis State may hold any other office or position ofprofit under this State, or the United States, except as anotary public if qualified by law. TEX. CONST.art. XVI, 540. 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 ofprofit” 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, acompensated assistant county attorney holds aposition ofprofit “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 ofprofit 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 alegislator’s holding oftwo 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 alegislator was not as amatter of law prohibited from acting in the capacity of“independent contractor” for aschool district on apart-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 apart-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 41.102 of the Government Code provides that “[a] prosecuting attorney may empZoy the assistant prosecuting attorneys, investigators, secretaries, and other office personnel that in hisjudgment are required for the proper and efficient operation and administration of the office.“l TEX. GOV’T CODEANN.541.102(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’TCODEANN.fj45.201 (Vernon 1988), section 41.101 defines “prosecuting attorney” for purposes of chapter 4 1of the Government Code as “a county attorney, district attorney, or criminal district attorney.” Id. $ 41.101.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