OFFICE OF THE ATTORNEY

GENERAL.

STATE OF TEXAS JOHN CORNYN

May 26, 1999

The Honorable J. Steven Houston Brewster County Attorney P.O. Box 323 Alpine, Texas 7983 1 Opinion No. JC-0054

Re: Whether the Brewster County Attorney may simultaneously serve asanattorney forthe City of Alpine (RQ-0041) Dear Mr. Houston:

You ask whether you may serve as both Brewster County Attorney and an attorney for the City ofAlpine, which is located inthe county. We conclude that because you are employed by the city and are not an officer, your city service does not implicate either the constitutional bar on dualoffice holding, see TEX. CONST. art. XVI, 540, orthe common-law doctrine ofincompatibility. In addition, because the Professional Prosecutors Act, TEX. GOV’T CODE ANN.ch. 46 (Vernon 1988 &Supp. 1999), does not apply tothe Brewster County Attorney, that Act does not preclude you from serving as an attorney to acity.
Article XVI, section 40 of the Texas Constitution provides that “[n]o person shall hold or exercise atthe same time, more than one civil office ofemolument.” For purposes ofthis provision,
a person holds an “oftice” as opposed to mere employment if he or she “exercises a ‘sovereign function ofthe government largely independent ofthe control of others.“’ Tex. Att’y Gen. Op. No. JM-1266 (1990) at 2 (quoting Aldine Indep. Sch. Dist. v.Standlq, 280 S.W.2d 578,583 (Tex. 1955)); see also Ti&y v.Rogers, 405 S.W.2d 220,224 (Tex. Civ. App.-Beaumont 1966, writ ref d n.r.e.) (applying Aldine test to determine that state college professor did not hold office within meaning of article XVI, section 40).

We conclude that you do not hold an office in your capacity as attorney for the City of Alpine. You inform us that you are appointed by and serve at the will of the city council and that you “perform all services incident to [your] position as directed by the Council.” Letter from J.Steven Houston, Brewster County Attorney, to Elizabeth Robinson, Chair, Opinion Committee 2(Mar. 12, 1999) (on file with Opinion Committee) [hereinafter “Request Letter”]. Given that you serve atthe will and under the direction ofthe city council, you do not exercise asovereign function of the city largely independent of the control of others. Thus, in your capacity as attorney for the City of Alpine, you are not an offtcer for purposes of article XVI, section 40. See Tex. Att’y Gen. LO-89-58 (concluding that person who served as attorney under the direction and atthe pleasure of
acity council did not hold ano&e forpurposes ofarticle XVI, section 40); see also Tex. Att’y Gen. LO-96-148 (concluding that article XVI, section 40 did not preclude elected county attorney from serving as assistant district attorney since an assistant district attorney is not an offtcer).The Honorable J. Steven Houston - Page 2 (JC-OOS&)

Accordingly, article XVI, section 40does not preclude you from serving asboth county attorney and attorney for the City ofAlpine.

We note that the common-law doctrine ofincompatibility may also preclude apublic officer from holding another position. This doctrine prohibits an officer from appointing or employing himself to a position under his control. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) (holding that doctrine of incompatibility disqualifies officers with appointing power “for appointment to the offices to which they may appoint”); Tex. Att’y Gen. LA-l 14 (1975) at 2-4 (extending the Ehlinger rationale topreclude aperson from serving asboth school board trustee and teacher employed by the district). Because an attorney for the City ofAlpine isnot an appointee or employee of the Brewster County Attorney, this prohibition does not apply to your situation. See Tex. Att’y Gen. LO-96-148 (concluding that doctrine of incompatibility prohibition against selfappointment and self-employment didnot apply tocounty attorney’s employment asassistant district attorney given that county attorney did not appoint or supervise assistant district attorneys).
Courts, recognizing the potential danger for conflicting loyalties, have also extended the doctrine ofincompatibility to preclude aperson from holding “‘two offices where one office might thereby impose its policies on the other or subject itto control in some other way,“‘Tex. Att’y Gen. Op. No. JM-1266 (1990) at 4 (quoting Tex. Att’y Gen. Op. No. JM-129 (1984)). See Thomas Y. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App. 1927, judgm’t adopted) (holding that offices ofschool trustee and city alderman were incompatible given board of aldermen’s powers over school property and authority to regulate health and safety within city). This office has concluded, however, that the concern with the potential for conflicting loyalties does not come into play when one of the two positions is merely an employment. See Tex. Att’y Gen. Op. No. JM-1266 (1990) at 4. For this reason, we conclude that the doctrine of incompatibility prohibition against conflicting loyalties does not apply to your situation. See Tex. Att’y Gen. LO-96-148 (concluding that doctrine ofincompatibility prohibition against conflicting loyalties did not apply to county attorney’s employment asassistant district attorney given that latter position is merely an employment).

In addition, we note that county attorneys subject to the Professional Prosecutors Act, TEX. GOV’T CODE ANN. ch. 46 (Vernon 1988 & Supp. 1999), are precluded from engaging in the private practice oflaw, including providing legal advice to municipalities. See Tex. Att’y Gen. Op. No. JC-0034 (1999) at4 (prosecutor subject to Act may not enter into consultation agreement with municipality). You inform us that the Brewster County Attorney is not subject to the Professional Prosecutors Act. Request Letter at2;see&o TEX. GOV’T CODE ANN. §46.002 (listing prosecutors subject to the Act) (Vernon Supp. 1999). Accordingly, you are not precluded from serving as an attorney to acity by the strictures ofthat Act.

In conclusion, based on the information provided in your letter, we conclude that neither article XVI, section 40 ofthe Texas Constitution nor the common-law doctrine of incompatibility precludes you from serving asbothBrewster County Attorney and anattorney forthe City ofAlpine. In addition, because the Professional Prosecutors Act does not apply to the Brewster CountyThe Honorable J. Steven Houston - Page 3 (JC-0054)

Attorney, that Act does not preclude you from serving asan attorney to acity. In sum, we conclude that you may serve as both Brewster County Attorney and an attorney for the City of Alpine. Finally, we note that while this dual service is not precluded by the Texas Constitution or the
common law, there may be particular situations in which ethical conflicts arise. You should, of course, consult the Texas Disciplinary Rules OfProfessional Conduct with regard to such conflicts.
SUMMARY

A county attorney who is not subject to the Professional Prosecutors Act, TEX. GOV’TCODEANN. ch. 46 (Vernon 1988 & Supp. 1999) may simultaneously serve as an attorney employed at the will and under the direction of acity council of a city located in the county.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General
CLARK RENT ERVIN Deputy Attorney General -General Counsel

ELIZABETH ROBINSON Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney General