DAN MORALES 

ATTORSEY GENERAL 

QBffice of tip IZlttornep General 

&ate of Qtexa$ 

October 25.1993 

Honorable Liiby Linebarger 

Chair 

Public Education Committee 

Texas House ofRepmsem&es 

P.O. Box 2910 

Austin, Texm 78768-2910 

Opinion No. 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 

jurisdictional boundary 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 atmual s&y as a wuncil member. You ask whether, under the foregoing 

&US, either spouse would be 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 subject to the rules regarding conflicts of interest 

codified in chapter 171 of the Local Government Code. 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 involving the business entity 

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HonorableLibby Lmebsrger - Page 2 (DM-267) 

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

interest and . . abstsin from 5rther participation in the matter. 

Id. 5 171.004(a)(l)-(2). (b). Chapter 171 provides for disclosure and abstention but 

does not disqualiQ local public officials from 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 declined the per diem for meetings of the CD. These fncts suggest that we consider 

whether either spouse hss a substantial interest 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 business entity by virtue of the salary from the city, then the other spouse also 

hss a substantial interest in a business entity because of that person’s marital relationship to 

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 business entity for purposes of chapter 

171. In Attorney General Opiion JM-852 (1988) we concluded by application of the rule 

of ejur&m generis to the detinition of “business entity” 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 “business entity.” A city is, rather, “[a] political entity or subdivision for 

local govemment8l purposes.” BLACK’S LAW DICI~ONARY 244 (6th ed 1990). We 

conclude, therefore, that neither spouse has a substamial interest in a business entity under 

chapter 171 by virtue of one spouse’s salary income from serving as a member of the city 

wuncil. Nor do any of the other facts you have offered suggest any substantial interest in 

a business entity that would invoke the application of 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 if the spouse who is a director of the CD also 

is an employee of a conservation and reclamation district. Your question raises the issue 

of dual office holding. Article XVI, section 40 of the Texas Constitution prohibits the 

holding by one person of “more thw one civil office of emolument.” The wnstitutional 

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HonorableLibby Lmebarger - Page 3 (DM-267) 

prohibition against dual 05ce holding thus generally would 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 

employment and not a “civil office.” See Akii?re In&p. Sch. Dist. v. Standley, 280 S.W.Zd 

578,583 (Tex. 1955) (decisive factor distinguishing public officer from public employee is 

“whether any sovereign fimction of the govermnent is wnferred upon the individual to be 

exercised by him for the benefit of the public &r&v independnt of the control of 

athers”) (quoting Dunbar 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 prohibition of 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 reclamation district. 

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 officer for two diRerent govemmemal entities, 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 (incompatibility prevents one person from serving as justice of 

peace. and as jailer in same county). Because we do not have any details wnwming the 

nature of the CD director’s employment at the wnservation and reclamation district, we 

cannot determine whether the two positions are 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 if you have a particular issue you wish us to consider in this regard. 

p. 1400 
Honorable Libby Linebarger - Page 4 W-267) 

SUMMARY 

A city is not a “lniness entity” for purposes of chapter 171 of 

the Local Oovemment Code. Tlte prohibition of article XV& section 

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 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by James B. Pinson 

Assisttmt Attorney General 

p. 1401