DAN MORALES

ATTORSEY GENERAL 

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General &ate of Qtexa$

October

25.1993

HonorableLiiby Linebarger Chair PublicEducation Committee TexasHouse ofRepmsem&es P.O. Box 2910 Austin,Texm 78768-2910 OpinionNo. DM-267
Re: whether wntlicts of interest exist thatwoulddiqual@rspousefromserving in elected office when both spouses hold elected positions in kd govemmd bodies with overlapping jutisdictional

. tmndaries and one jurisdiction Is responsiile for 8 portion of the annual budget of the other governments) body, uld related questions (IQ566)

Your request for an opinion involves a married couple’ s possible wnflicts of interest when each spouse holds elected office in a local governmental body whose jurisdictionalboundary overlaps with that of the other body and one govemmanal body is responsiile for a portion of the annual budget of the other body. You explain that one spouse is an elected director of a state cotion district (“CD”) opemting under its enabling legislation and chapters 50 and 52 of the Water Code. The CD derives its ~esfiom”userfees”~onpum~efromwdlsinthecD. About4Opercentof theusafee~eswme~mwellsthat~locatedinacatainci~(“thtcity”)whose jurisdiction partially overlaps that of the CD. The directors of the CD do not receive a salary, but they are entitled to a per diem for meeting attendance. which per diem this spousealwayshasdeclined. Theothaspouseisamanberofthecitycouncilofthecity and receives an atmuals&y as a wuncil member. You ask whether, under the foregoing &US,either spouse wouldbe disqua%ed from 05ce because of a wngict of interest. Each spouse is a “@]d public official,” that is, “a member of the governing body.. .ofanydistrict

. . . . municiprdity ,... or other local govemmental entity,” Local CWt Code g 171.001(1).and as such is subjectto the rules regarding conflicts of interest codifiedin chapter 171 of the Local GovernmentCode. Under chapter 171 “a local public official [who] has a substantisj interest in a business entity or in real property” must in certaininstsnces

file [with the official record keeper of the governmental entity], before a vote or decision on any matter involvingthe business entity

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or the real property, an &Ed&t stating the nature and extent of the interest and

. . abstsin from 5rther participationin the matter. Id. 5 171.004(a)(l)-(2). (b). Chapter 171 provides for disclosure and abstention but does not disqualiQlocal publicofficialsfrom office.
Your hcts do not suggest that any real property interest is involved here, but you do mention that one spouse receives a salary as a city council member and that the other has declinedthe per diem for meetings of the CD. These fncts suggest that we consider whether either spouse hss a substantialinterest in I business entity for putposes of chapter 171. In that chapter a “‘ [b]usiness entity means a sole proprietorship, paRwmhip, firm, wrpodon. holding wmpany, joint-stock wmpany, receivership, trust, or any other entity recognized by law.” Id. 8 171.001(2). *[A] person has a substamisl interest in a business entity if:

. . .5nds received by the person from the business entity exwed 10 percent of the person’ s gross income for the previous year.” Id. 5 171.002(a)(2). Therefore, the city wuncii member spouse has a substwtial interest in a business entity if the city is a business entity and if the money received from the city exceeds 10 percent of that spouse’ s income last year. Further. if the city council member has a substsntial interest in a businessentity by virtue of the salary from the city, then the other spouse also hss a substantialinterest in a businessentity because ofthat person’ s marital relationshipto the wuncil member. See id. 5 171.002(c) (local public official has substantial interest if person related to that official in 5st degree of wnmnguinity or a5nity has substantial interest).
There is no precedent on whether a city is a businessentity for purposes of chapter 171. In Attorney GeneralOpiion JM-852 (1988) we concludedby applicationof the rule of ejur&m generis to the detinition of “businessentity” in section 171.001(2) that a state university is not included within that definition as “any other entity recognized by law” because it is a public entity and its purpose is wt to produce 5tancial benefits for private persons. Attorney Geneml Opiion IM-852 at 34. The same rule of construction shows that a city is not a “businessentity.” A city is, rather, “[a] politicalentity or subdivisionfor local govemment8l purposes.” BLACK’ S LAWDICI~ONARY

244 (6th ed 1990). We conclude,therefore, that neither spouse has a substamialinterest in a business entity under chapter 171by virtue of one spouse’ ssalary income from serving as a member of the city wuncil. Nor do any of the other facts you have offered suggest any substantialinterest in a businessentity that would invokethe applicationof chapter 171.
You ask whether the spouse that is a director of the CD may accept the per diem. We see no reason under the fads you have givw that the director spouse should not ciccepttheperdiem.
You also ask what restrictions apply ifthe spouse who is a director of the CD also is an employee of a conservation and reclamationdistrict. Your question raises the issue of dual office holding. Article XVI, section 40 of the Texas Constitution prohibits the holding by one person of “morethw one civil office of emolument.” The wnstitutional

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prohibitionagainst dual 05ce holdingthus generallywould apply under these facts only if both the position at the wnsmgtion and reclamation district and the directorship of the CD are “civil offices of emolument.” You do wt present us any details wnceming the nature of the CD directofs “employment” at the conservation and reclamation district, so we accept as fact that the position at the wnmrvation and reciamation district is an employmentand not a “civiloffice.” SeeAkii?re In&p. Sch. Dist. v. Standley, 280 S.W.Zd 578,583 (Tex. 1955) (decisivefactor distinguishing public officerfrom public employeeis “whetherany sovereignfimction of the govermnentis wnferred upon the individualto be exercised by him for the benefit of the public &r&v independnt of the control of athers”) (quotingDunbar v. Bmzoria Count, 224 S.W.2d 738,740-41 (Tex. Civ. App.- Galveston 1949, writ refd), with emphasis supplied by Akfine court). Under these circumstances,the prohibitionof article XVI, section 40, against dual office holding does not apply to the spouse who is a director of the CD and an employee of a conservation and reclamationdistrict.
Another potential bar to dual office holding is the wmmon-law doctrine of inwmpatibiiity. See State ex rel. Brennan v. Mbrtin, 51 S.W.2d 815, 817 (Tex. Cii. App.-San Antonio 1932,no writ) (statement of doctrine). In general,inwmpatiiity may arise when one person serves as an officerfor two diRerentgovemmemalentities, or when one person serves as an officer and employee for the same governmen tdentity. See Attorney Oenersl Opinion JM-203 (1984) at 7-l 1. But see Attomey Gcneml Opiion JM-1047 (1989) at 5-6 (incompatibilityprevents one person from serving as justice of peace.and asjailer in same county). Because we do not have any details wnwming the nature of the CD director’ semployment at the wnservation and reclamation district, we cannot determinewhether the two positionsare incompatible. Fiiy, you ask what possible wnflicts of interest there are mgarding voting on issues gamane to either governmental body by either official. ,We can answer this question only by referring you generally to chapter 171 of the Local Government Code and the case law and attorney genera) opinions wnstruing it. We invite you to submit a new request ifyou have a particularissueyou wishus to considerin this regard.

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### SUMMARY
A city is not a “lniness entity” for purposes of chapter 171 of the Local Oovemment Code. Tlte prohibitionof article XV§ion 40 of the Texas Constitution against dual office holding does not applytoaperson~oisbothadirectorofrstateconservation district 8nd 8 mere employee of 8 wnserwtion and reclamation district.

DAN MORALES Attorney Oeneml of Texas
WILL. PRYOR Fii Asshnt Attorney General
MARYKELLER Deputy Attorney Gend for Litigation
RENEAHICKS St8te Solicitor
MADELEINEB. JOHNSON Chair, Opiion Committee Prepared by JamesB. Pinson AssisttmtAttorney General

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