# The Attorney General of Texas

April 5, 1984 JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX 12546 Austin. TX. 76711- 2540 5121475-2501 T&X 910/674-1367 Telecopier 5121475.0266

,607 Main St.. Suite 1400 Dallas. TX. 75201.4709 2141742-6944

4624 Alberta Ave., Suite 160 El Paso. TX. 79905.2793 9151533.3464

20 oakis Ave.. Suite 202 tiouston. TX. 77002-6966 7131650-0666

606 Broadway. Suite 312 hbbock. TX. 79401-3479 6061747-5238

4309 N. Tenth. Suite B McAllen. TX. 76501-1685 5121662-4547

200 Main Plaza. Sulk 400 San Antonio, TX. 762052797 5121225.4191 HonorableOscar H. Mauzy Chairman OpinionNo. JM-141
Senate Committee on Jurisprudence TVS?:Whether a county comTexas State Senate missioner may be appointed P. 0. Box 12068,Capitol Station to the Texas Sesquicentennial Austin, Texas 78711 Commissio”
Dear SenatorMauzy:
You have asked whether a county commissioner may serve as a gubernatorial appointee on the Texas Sesquicentennial Commission created by article 6145-11, V.T.C.S. In answering such questions of dual office holding, this office has considered the following three issues:
1. Whether article II, section 1 of the Texas

Co”stitutio”, the separation of powers provision, prevents one person fromholding the two offices. 2. Whether article XVI, section 40, which prohibits one person from holding two civil offices of emolument is applicable. 3. Whether the common law doctrine of incompatibility prevents one person from holding both positions. Article II, section 1 of the Texas Constitution provides as follows: The powers of the Governmentof the State of Texas

shall be divided into three distinct departments, each of which shallbe confided to a separatebody of magistracy. to wit: Those which are Legislative to one; those which are Executive to another, and thosewhich are Judicial to another; and no person, or collection of persons, being of one of thesedepartments,shall exercise any power properly attached to either of the others, except in the instancesherein expresslypermitted.

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Prior opinions of this office have held that this provisionbars one person from holding offices in two different branches of government, see Attorney General Opinions H-7, H-6 (1973); Ietter AdvisoryNo.137 (1977),although there are also opinionswhich permit one person to hold office in twobranches of government. See Attorney General Opinions M-1194 (1972) (judgemay serve as college regent); M-1146 (1972) (Parksand Wildlife Commissionermay serve as a trustee of an independent school district);M-842 (1971) (judgeof a domestic relations court may serve as a regent of TSU); C-43 (1963); and V-63 (1947) (a county commissionermay serveas a trusteeof an independent schooldistrict). However, it is unnecessary to determine which line of opinions represents the correct view of article II, section 1. The Texas Constitution assigns a county commissioner to the judicial branch. See Tex. Const. art. V, §l; Attorney General Opinion H-6 (1973). The members of the Sesquicentennial Commission do not, in our opinion, "exercise any power properly attached to either of the [other departments of government]." Thus, article II, section 1. however interpreted, does not bar a county commissioner from serving on the SesquicentennialCommission. Article 6145-11, V.T.C.S., establishes the "Texas 1986 SesquicentennialCommission." It consistsof publicmembers appointed by the governor,members drswn from the legislature,and the executive heads of particular state agencies. V.T.C.S. art. 6145-11, 82. The commission is abolished effective September 1, 1987. Sec. 11. The duties of the commission are set out in sections 7 and 9A of article 6145-11,V.T.C.S. The overwhelmingmajority of its duties are advisoryand ceremonial. For example, the commissionis to encourage, assist and develop standards for activities celebrating the state's sesquicentennialorganized by individuals,private organizations,and governmental bodies, and to sanction activities which meet its standards. Sec. 7(l), (3). (4). It is to publicize sesquicentennial activitiesand invitenational and internationaldignitaries to attend such activities. Sec. 7(2!, (5), (6). The commission also has responsibil~ities

with respect to developinga logo and sanctioningand selling commemorative products. Sec. 7(7), (8). It may begin planning for the Texas SesquicentennialMuseum. Sec. 9A(a). Planning is to be completedand the museum operatedby the Texas Sesquicentennial Museum Board. The commissiondoes,however,perform someminor functionsof the executive branch. Members of the executive branch cause the laws to be carried out, while the legislative branch enacts them, and the judiciary determines whether the actions of the other branches are lawful,when the issues are presented in a proper case. See StateV. SouthwesternBell TelephoneCo., 526 S.W.?d 526 (Tex. 1975);Walker V.

p. 604HonorableOsca~r H. Mauzy - l'age3

Baker, 196 S.W.2d 324 (Tex. 1946); Texas Liquor Control Board V. Continental Distilling Sales Co., 199 S.W.Zd 1009, 1012 (Tex. Civ. APP. - Dallas 1947,writ ref'dn.r.e.). See also Tex. Const. art. II. §l. interp. cownentary (Vernon 1955). The cormnission

has power to authorize others to use the logo it develops, to sanction commemorativeproducts, and to make rules and regulations necessary to perform its functions. However. the commissionhas minimal power to affect individualsthrough exercise of thepowers to sanctioncommemorativeproductsand authorizeuse of its logo. Exercising these powers assists the commission in publicizing ,andcommemorating the sesquicentennialwhile it controls the kind of product bearing its imprint. The commission mY adopt rules "necessary for it to perform its functions," a rulemaking power that is as limited~

as its functions. The commission'sexecutivepowers, in comparison to its advisory and ceremonial duties, are few and de minimus. Looking at the commission'slegal role in its entirety,and taking into consideration its short life span,we cannot say that members of the commissionare "of" the executivebranch or "exerciseany power properly attached" to the executive branch. Therefore, article II, section 1 of the Texas Constitution,however interpreted,does not bar a county commissioner from serving as a member of the Texas 1986 Sesquicentennial C0mmiss10*. Article XVI, section 40 of the Texas Constitution does not prohibit the appointment in question. A member of the SesquicentennialCommission receivesno compensation for his service, only reimbursem~ent of expenses. SeeV.T.C.S. art. 6145-11, 95. Thus, he does not hold a "civil officeof emolument" within article XVI, section 40. Moreover, county commissioners are expressly excepted from article XVI, section 40. Therefore, article XVI, section 40 poses no bar to this appointment. The common law doctrine of incompatibilityprevents one person from holding two positionswhere one is accountable or subordinate to the other, or where there is overlap of powers and duties such that one person could not disinterestedly serve in both positions. See Thomas V. Abernathy County Line IndependentSchoolDistrict, 290 ST 152 (Tex.Cocmt'n

App. 1927, judgmt adopted): State ex rel. BrennanV. Martin, 51 S.W.Zd 815 (Tex. Civ. App. - San Antonio 1932, no writ); Letters Advisory Nos. 137, 149 (1977); 114 (1975). We find no relationship of dominion or accountabilitybetween the commissioners court and the SesquicentennialCommission,nor do we find any conflict or overlap between their duties. Therefore, the common law doctrine of incompatibilitydoes not prevent a county commissioner from also servingas a member of the SesquicentennialCommission.

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A county commissioner may serve on the Texas Sesquicentennial commission.
SUMMARY

A county commissioner is not barred by article II, section 1 or article XVI, section 40 of the Texas Constitution or by the common law doctrine of incompatibility from serving on the Texas SesquicentennialCommission.

very trulyyour

J-b .

JIM MATTOX Attorney General of Texas
TOM GREEN FirstAssistantAttorney General
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby SusanL. Garrison AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Susan Garrison Nancy Sutton

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