ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September l&2006 

The Honorable Russell Wilson 

Wilson County Attorney 

1420 Third Street 

Floresville, Texas 78 114 

Opinion No. GA-0460 

Re: Whether a county attorney may accept 

appointment as a voluntary ombudsman for the 

National Committee for Employer Support of 

the Guard and Reserve (RQ-045%GA) 

Dear Mr. Wilson: 

You ask whether a county attorney may accept appointment as a voluntary ombudsman for 

the National Committee for Employer Support of the Guard and Reserve (“ESGR”).’ 

ESGR was created in 1972, under Department of Defense (“DOD”) directive 1250.1, as the 

lead DOD organization “to promote cooperation and understanding between Reserve component 

members and their civilian employers and to assist in the resolution of conflicts arising from an 

employee’s military commitment. “2 “The primary means of assistance in preventing, resolving, or 

reducing employer and/or employee problems and misunderstandings . is done through a 

nationwide Ombudsman program.” About ESGR, supra note 2; Request Letter, supra note 1, at 2. 

“ESGR has a national network of over 900 volunteer ombudsmen who help resolve issues between 

employers and their employees who serve in the National Guard and Reserve.” About ESGR, supra 

note 2; Request Letter, supva note 1, at 2. “The Ombudsmen Services Program was established in 

1974 to provide information, counseling, and informal mediation of issues relating to compliance 

with the Uniformed Services Employment and Reemployment Rights Act.“3 “The Ombudsmen 

Services Program provides information, informal mediation, and referral service to resolve employer 

conflicts. ESGR is not an enforcement agency and does not offer legal counsel OY advice.” About 

.OSP, supra note 3 (emphasis added). “More than 96 percent of all such requests for assistance are 

resolved in this informal process, without requiring referral to the Department of Labor for formal 

‘See Letter from Honorable Russell Wilson, Wilsdn County Attorney, to Honorable Greg Abbott, Attorney 

General of Texas, at 1 (Mar. 1,2006) (on tile with the Opinion Committee, also available af http:llwww.oag.state.tx.us) 

[hereinafter Request Letter]. 

*NAT’LCOMM.FORESGR,WHATISESGR? [hereinafferAboutESGR], mnilable athttp://~.esgr.org/about 

ESGR.asp (last visited Sept. 5,2006); see Request Letter, su~~ra note 1, at l-2. 

‘NAT’L COMM. FOR ESGR, ESGR PROGRAM-OMBUDSMEN SERVICES [hereinafter About OSP], mnilable at 

http://www.esgr.org/employers2/programs.asp?c=ombudsman.html (last visited Sept. 5,2006). 
The Honorable Russell Wilson - Page 2 (GA-0460) 

investigation.” Id. Your question implicates both article XVI, section 12 ofthe Texas Constitution 

and the common-law doctrine of incompatibility. 

Article XVI, section 12 of the Texas Constitution provides that “[n]o member of Congress, 

nor person holding or exercising any office of profit or trust, under the United States, or either of 

them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or 

exercise any office of profit or trust under this State.” TEX. CONST. art. XVI, § 12. A county 

attorney, as an elected official, clearly holds an “office of profit or trust under this State.” Id. art. 

XVI, 3 12; see id. art. V, 5 2 1. The question before us is whether a volunteer ombudsman for ESGR 

holds an “office of profit or trust, under the United States.” Id. art. XVI, fi 12. 

In 1955 the Texas Supreme Court declared that “the determining factor which distinguishes 

a public officer from an employee is whether any sovereign function of the government is conferred 

upon the individual to be exercised by him for the benefit of the public largely independent of the 

control of others.” Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). In an 

opinion issued in2003, this office said that a member of a local selective service board~does not hold 

an offtce oftrust under the United States “because a local board’s governmental powers are exercised 

only in the event of [a] mandatory induction into the military services, and federal law does not today 

provide for conscription.” Tex. Att’y Gen. Op. No. GA-0057 (2003) at 6. Thus, amember of a city 

council was not barred by article XVI, section 12 from simultaneously serving as amember of a local 

selective service board. See id. By contrast, a 1991 opinion of this office found that a justice of the 

Supreme Court of Texas was barred by article XVI, section 12 from serving as a member of the 

board of directors of the State Justice Institute because a member of that board was an appointee of 

the President, and the board members “are expressly charged with the duty to establish policy and 

funding priorities for the institute, to issue rules and regulations for the institute, and to distribute 

federal funds in the form of grants and cooperative agreements or contracts.” Tex. Att’y Gen. Op. 

No. DM-49 (1991) at 6. 

As we have indicated, an ombudsman for ESGR is a volunteer. See About ESGR, supra 

note 2; Request Letter, supra note 1, at 2. Federal law states that the Secretary of Defense may 

accept “[v]oluntaryservices to be provided forprograms providing services to members ofthe armed 

forces.” 10 U.S.C.A. 5 1588(a)(3) (West 1998 & Supp. 2006). The same statute provides that with 

regard to a person performing voluntary services “the Secretary concerned may not place the 

person in Id. § 1588(b)(3)(A). B ecause an ESGR ombudsman does not 

offer legal counsel or advice, does not have enforcement authority, and, specifically by federal law, 

performs no policy-making function, he does not, in our view, exercise “any sovereign function of the 

government [that is] largely independent of the control of others.” Aldine, 280 S.W.2d at 583. 

As a result, he does not hold an “office of profit or trust, under the United States” in contravention 

of article XVI, section 12 of the Texas Constitution, TEX. CONS?. art. XVI, 5 12. 

As to common-law incompatibility, there are three aspects: self-appointment, selfemployment, andconflictingloyalties. SeeTex. Att’y Gen. Op. Nos. GA-0307 (2005) at 3, GA-0224 

(2004) at 2, GA-0032 (2003) at 4. Because a county attorney neither appoints nor employs an ESGR 

ombudsman, nor does an ESGR ombudsman appoint or employ a county attorney, the first two 
The Honorable Russell Wilson - Page 3 (GA-0460) 

branches of incompatibility are inapplicable. As to the third aspect--conflicting loyalties-it is well 

established that its applicability requires that each position constitute an “office.” Tex. Att’y Gen. 

Op. Nos. GA-0350 (2005) at 4, GA-0273 (2004) at 3. Because the position of ESGR ombudsman 

is not an offrce, conflicting loyalties incompatibility does not bar the simultaneous holding ofthe two 

positions at issue here. 

We conclude that a county attorney is not barred by either article XVI, section 12 of the 

Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as 

a volunteer ombudsman for the ESGR. 
The Honorable Russell Wilson - Page 4 (GA-0460) 

SUMMARY 

A county attorney is not barred by either article XVI, section 

12 of the Texas Constitution or the common-law doctrine of 

incompatibility from simultaneously serving as a volunteer 

ombudsman for the National Committee for Employer Support ofthe 

Guard and Reserve. 

Very truly yours, 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee