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 

Honorable Oscar H. Mauzy 

Chairman 

Opinion No. 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 Senator Mauzy: 

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 off ice 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 from holding 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 Government of the State of Texas 

shall be divided into three distinct departments, 

each of which shall be confided to a separate body 

of magistracy. to wit: Those which are 

Legislative to one; those which are Executive to 

another, and those which are Judicial to another; 

and no person, or collection of persons, being of 

one of these departments, shall exercise any power 

properly attached to either of the others, except 

in the instances herein expressly permitted. 

p. 603 
Honorable Oscar Ii. Mauzy - Page 2 

Prior opinions of this office have held that this provision bars 

one person from holding offices in two different branches of 

government, see Attorney General Opinions H-7, H-6 (1973); Ietter 

Advisory No.137 (1977), although there are also opinions which permit 

one person to hold office in two branches of government. See Attorney 

General Opinions M-1194 (1972) (judge may serve as college regent); 

M-1146 (1972) (Parks and Wildlife Commissioner may serve as a trustee 

of an independent school district); M-842 (1971) (judge of a domestic 

relations court may serve as a regent of TSU); C-43 (1963); and V-63 

(1947) (a county commissioner may serve as a trustee of an independent 

school district). 

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 

Sesquicentennial Commission. 

Article 6145-11, V.T.C.S., establishes the "Texas 1986 

Sesquicentennial Commission." It consists of public members 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 overwhelming majority of its duties are 

advisory and ceremonial. For example, the commission is to encourage, 

assist and develop standards for activities celebrating the state's 

sesquicentennial organized 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 

activities and invite national and international dignitaries to attend 

such activities. Sec. 7(2!, (5), (6). The commission also has 

responsibil~ities with respect to developing a logo and sanctioning and 

selling commemorative products. Sec. 7(7), (8). It may begin 

planning for the Texas Sesquicentennial Museum. Sec. 9A(a). Planning 

is to be completed and the museum operated by the Texas Sesquicentennial Museum Board. 

The commission does, however, perform some minor functions of 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 State V. 

Southwestern Bell Telephone Co., 526 S.W.?d 526 (Tex. 1975);Walker V. 

p. 604 
Honorable Osca~r H. Mauzy - l'age 3 

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'd n.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 commemorative products, and to make rules and 

regulations necessary to perform its functions. However. the 

commission has minimal power to affect individuals through exercise of 

the powers to sanction commemorative products and authorize use of its 

logo. Exercising these powers assists the commission in publicizing 

,and commemorating the sesquicentennial while 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's executive powers, in comparison to its advisory 

and ceremonial duties, are few and de minimus. Looking at the 

commission's legal role in its entirety , and taking into consideration 

its short life span, we cannot say that members of the commission are 

"of" the executive branch or "exercise any 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 

Sesquicentennial Commission receives no compensation for his service, 

only reimbursem~ent of expenses. See V.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 incompatibility prevents one person 

from holding two positions where 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 Independent School District, 290 ST 

152 (Tex. Cocmt'n App. 1927, judgmt adopted): State ex rel. Brennan V. 

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 accountability between the commissioners 

court and the Sesquicentennial Commission, nor do we find any conflict 

or overlap between their duties. Therefore, the common law doctrine 

of incompatibility does not prevent a county commissioner from also 

serving as a member of the Sesquicentennial Commission. 

p. 605 
. -. 

Honorable Oscar 11. Mauzy - Page 4 

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 

Sesquicentennial Commission. 

very truly your 

J-b 

. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Susan Garrison 

Nancy Sutton 

p. 606