THE ATTORNEP GENER.&L 

OF TEXAS 

Honorable Charles S. Brack Opinion No. JM-1266 

Chambers County Attorney 

P. 0. Box 1200 Re: Whether a city council 

Anahuac, Texas 77514 member may simultaneously serve 

as a county special district 

or school district employee, or 

as a director of a navigation 

district (RQ-2145) 

Dear Mr. Brack: 

You have requested our opinion regarding six possible 

instances of dual office holding. We will briefly describe 

each example before addressing the subject in general terms. 

1. A city council member who receives a $40 

per month expense allowance and who is also a 

county sanitation and safety officer, a 

salaried position appointed by the commissioners court. 

2. A city council member who receives a $40 

per month expense allowance and who is also a 

salaried employee of a conservation and 

reclamation district. 

3. A city council member who receives a $40 

per month expense allowance and who is also a 

salaried teacher employed by a school district. 

4. A mayor who receives an $80 per month 

expense allowance and who is also a salaried 

employee of a school district. 

5. A city council member who receives a $40 

per month expense allowance and who also holds 

a per diem compensated appointment as director 

of a navigation district. 

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Honorable Charles S. Brack - Page 2 (JM-1266) 

6. A city council member who receives a $40 

per month expense allowance and who is also a 

salaried employee of a hospital district. 

Article XVI, section 40, of the Texas Constitution 

furnishes the primary constitutional impediment to dual 

office holding. With various exceptions, it provides that 

"no person shall hold or exercise at the same time more 

than one civil office of emolument.V* The Supreme Court 

has repeatedly held that the determining factor in distinguishing an officer from an employee is whether the 

individual in question exercises a "sovereign function of 

the sovernment . . . largely independent of the control of 

others." Aldine Indeo. School Dist. v. Standlev 280 S.W.2d 

578, 583 (Tex. 1955), ouotina Dunbar v. Brazoria'Countv, 224 

S.W.Zd 738. 740 ITex. Civ. ADD. - Galveston 1949, writ 

ref'd). Eiected officials are ‘ciearly officers, and 'therefore the mayor and city council members under consideration 

here are officers for purposes of article XVI, section 40. 

As to the other positions of which you inquire, it is 

useful to consider Attorney General Opinion 3X-499 (1986), 

where we held that the chief appraiser of an appraisal 

district is an employee rather than an officer: The opinion 

turned on the consideration that the chief appraiser exercised his responsibilities subject to review and correction 

by the appraisal review board, and served at their pleasure. 

In our opinion, if an individual may be terminated at will 

by a superior body, he can hardly be said to exercise power 

"largely independent of the control of others," since the 

superior body is in a position to dictate his every act. 

Based on these criteria, we may conclude that since each of 

the positions in examples 1, 2, and 6 is subject to control 

by a superior body, those positions are employments rather 

than offices. Thus, article XVI, section 40, does not bar a 

city council member from holding simultaneous positions as a 

county sanitation and safety officer, an employee of a 

conservation and reclamation district, or an employee of a 

hospital district. 

With regard to your third and fourth examples, a 

further inquiry is necessary. Article XVI, section 40, also 

establishes an additional restriction for certain employees 

who serve on the governing bodies of a city or other local 

governmental districts. It provides in pertinent part: 

State employees or other individuals who 

receive all or part of their compensation 

either directly or indirectly from funds of 

the State of Texas and who are not State 

officers, shall not be barred from serving as 

p. 6~764 
Honorable Charles S. Brack - Page 3 (JM-1266) 

members of the governing bodies of school 

districts, cities, towns, or other local 

governmental districts: provided, however, 

that such State employees or other individuals 

shall receive no salary for serving as members 

of such governing bodies. 

Tex. Const. art. XVI, 5 40. Teachers and other employees of 

school districts receive a portion of their compensation 

from funds of the state of Texas. As a result, they may 

serve as city council members or as mayor only if they 

receive no salary for such service. Attorney General 

Opinion JM-118 (1983): MW-230 (1980). We must therefore 

determine whether the $40 or $80 per month "expense allowance" constitutes a salary. If it constitutes a salary, the 

school teacher must renounce it in order to serve on the 

city council. Letter Advisory No. 20 (1973). 

For purposes of the quoted provision of article XVI, 

section 40, **salary*1 does not include legitimate reimbursement of expenses. - See aenerallv Whitehead v. Julian, 476 

S.W.2d 844 /Tex. 1972) Iemense allowance does not make 

office a "lucrative office";-salary, fees, or other compensation must be paid): Willis v. Potts, 377 S.W.Zd 622 (Tex. 

1964) (token payment of $10 per meeting makes city council 

member's office a "lucrative office"); Attorney General 

Opinion MW-450 (1982); MW-230. In the examples you cite, we 

do not believe that the school teacher or other salaried 

employee of the school district may receive compensation for 

serving as mayor or city council member merely by denominating a $40 or $80 monthly payment an "expense allowance" 

rather than a ltsalary.*' At the very least, the official 

should submit an affidavit that the actual expenses he 

incurs each month equal or exceed the allowance payment. 

The better practice would be for the official to itemize his 

expenses each month in order to demonstrate that the allowance does not exceed expenses incurred. See Attorney 

General Opinion H-992 (1977). 

As to your fifth example, a director of a navigation 

district holds an office, and since, by your description, he 

receives a per diem compensation for such service, he may 

avoid the prohibition of article XVI, section 40, only if 

his city council position is not one of emolument. The same 

test applied to the school district employees in your third 

and fourth examples is applicable here: if the "expense 

allowance" can be fairly demonstrated to constitute reimbursement for actual expenses, the constitutional provision 

does not bar the city council member from also serving as 

director of a navigation district. 

p. 6765 
Honorable Charles S. Brack - Page 4 (JM-1266) 

We must also consider the common law doctrine of 

incompatibility as applied to the positions of which you 

inquire. That doctrine prohibits one individual from 

occupying "two offices where one office might thereby impose 

its policies on the other or subject it to control in some 

other way." Attorney General Opinion JM-129 (1984); see 

&&lg Attorney General Opinion JM-133 (1984). The aspect of 

the doctrine relevant here, sometimes called the "conflicting loyalties" type of incompatibility to distinguish 

it from the "self-employment I0 type, see Letter Advisory No. 

114 (1975), has never been held to apply to a situation in 

which one position is an office and the other an emDlovment. 

Indeed, the original Texas case involving incompatibility, 

Thomas v. Abernathv Countv Line IndeD. School Dist., 290 

S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), involved 

the gffices of city alderman and school trustee. On other 

occasions, we have held incompatible the offices of community college trustee and county commissioner, Attorney General 

.~.-- Opinion JM-129-;; 'and the offices of county auditor and city~ 

council member. Attorney General Opinion JM-133; see also 

Letter Advisory No. 149 (1977). 

Applying these principles to your six examples, we 

believe it is clear that incompatibility has no application 

to numbers l-4 or to number 6, since in each instance one of 

the positions is a mere employment. As to the fifth example, it is equally apparent that both positions are offices. 

If the geographical boundaries of the navigation district 

overlap with those of the city of which the individual is a 

council member, there is at least a potential for conflicting loyalties. We cannot say as a matter of law, however, 

that these positions are incompatible. If, for example, the 

two political subdivisions contract with each other, there 

probably exists sufficient potential for conflicting loyalties as to render the two positions incompatible. Again, if 

the navigation district has and exercises taxing authority, 

the potential for conflict is probably insurmountable. We 

conclude that the common law doctrine of incompatibility 

may, but does not as a matter of law, prohibit a single 

individual from serving both as a member of a board of 

directors of a navigation district and as a city council 

member of a municipality where the territory of the district 

and municipality overlap. 

SUMMARY 

Neither article XVI, section 40, of the 

Texas Constitution nor the common law doctrine of incompatibility bars a city council 

member from simultaneously serving as a 

county sanitation and safety officer, an 

P. 6766 
Honorable Charles S. Brack - Page 5 (JM-1266) 

employee of a conservation and reclamation 

district, or an employee of a hospital 

district. A mayor or city council member iS 

not barred by incompatibility from simultaneously serving as an employee of an 

independent school district, but he must 

renounce any salary or compensation for 

serving as mayor or city council member. A 

city council member is barred by article XVI, 

section 40, from serving as a director of a 

navigation district unless the allowance 

received for serving as council member can be 

demonstrated to constitute reimbursement for 

expenses only. Common-law incompatibility 

may, depending on the circumstances, bar one 

individual from serving both as city council 

member and as director of a navigation district, but it does not do so as a matter of 

law. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

P. 6767