# TheAttorney General ofTexas

JIM MATTOX Attorney General March5. 1984

Supreme Court Building P.0. BOX12546 Austin. TX. 76711. 2546 512,4752501 Telex 9101674-1367 Telecopier 512l4750265

1607 Main St.. Suite 1400 Dallas. TX. 75201.4709 214/742-6944

4624 Alberta Ave.. Suite 160 ElPaso. TX. 79905.2793 91515332464

**d0 Dallas** Ave.. Suite **2332** Houston. TX. 77002.6966 713/65M666

606 Broadway. Suite 312 hbbock, TX. 79401.3479 606/747.5236

4309 N.Tenth. Suite 6 McA,len. TX. 76501.1665 512,682-4547

2W Win Plaza. Suite 400 SanAntonio. TX. 76205.2797 5121225.4191

An Equal OppOrtunityI Affirmative Action Employer Rouorable Lloyd Crias chairman Committee onLabor andEmployment Relations Texas Eouae of Representatives P. 0. Box2910 Austin. Texas 78769 opinion No. .JM-133
Re: Whether anindividual may serve simultaneously as county auditor andcity councilman of acity located in that county

DearRepresentative Criaa:
Youinform us that an individual was elected to the city council of Galveston, Texas, and subsequently was appointed to be county auditor of Galveston County. Thematerials included with your letter to this office indicate that he receives asalary fromthe county for hiss services ae auditor but draws uo aalary from the city in his official capacity. Questions have arisen aa to the propriety of this person occupying both offices. You ask whether this person is prohibited bylawfromsimultaneously holding both offices, andif so, whether the city office is uowvacant. Youalso ask whether article 9aab. V.T.C.S., or any other law prohibits this person from participating in

(1) decisions involving a city-created tax reinvestment zone. or (2) appointments to **the** city's park board of trustees. or anyother matter involving the county andpark board requiring city council action. Uponexamination of the relevant statutes, weconclude that the coavaon law doctrine of incompatibility prohibits one person from simultaneously occupying the offices of city councilman and county auditor of acounty inwhich the city is located. ,The doctrine of incompatibility prohibits one person from occupying twooffices whenoneoffice may"thereby impose ita policies on the other or subject it to control in some other wav." Attornev General Opinion JM-i29 (1984); eee Thomas v. Abernathy County Lin; Independent School District, 29o.W. 152 (Tex. Comm.App. 1927); State ex rel. Brennan v. Martin, 51 S.W,2d815 (Tex. Civ. App. - San Antonio 1932, nowrit). Inthis respect, weobserve that city council members may authorize agreements between the city and county to

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provide for, inter alla. the following: the creation of regional planning commission8 which are authorized to contract with cities and counties for the performance of enumerated services. see V.T.C.S. art. lOllm, 14; the construction and payment of improvements necessary for the public health and to promote efficient sanitary regulations, see V.T.C.S. art. 1015, 13; the construction and supervision of joint recreational facilities andprograms. see V.T.C.S. art. 1015c-1, 93. - The county auditor is appointed pursuant to article 1645, V.T.C.S., by the district judge(s) having jurisdiction in the county. This office has previously determined that acounty auditor maynot be simultaneously employed as a school teacher and a county probation officer. Letter Advisory No. 65 (1973). The county auditor is charged with the

general oversight of all the books andrecords of all the officers of the county, district or state. who may be authorized or required by law to receive or collect any money, funds, fees. or other property for the use of, or belonging to, the county; and he shall see to the strict enforcement of the lawgoverning county finances.
V.T.C.S. art. 1651. Theauditor is additionally authorized to examine the accounts and orders of the commissioners court, all reports of collections of money for the county, and cash in the hands of the county treasurer. V.T.C.S. arts. 1653-1655. Although the auditor may not independently order the expenditure of county funds, the commissioners court maynot expend funds without the approval of the county auditor. Smithv. McCoy,533S.W.Zd457, 459 (Tex. Civ. App. - Dallas 1976, writ dism ’d). Theauditor in such instances maywithhold approval of payments, though the refusal to approve payments maybe neither arbitrary nor in contravention of law. Id. at 460. Seealso Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. G. - Rouaton[l4th Dist.] 1979. writ ref ’d n.r.e.1. Thus, there are many instances in which the duties of the auditor are likely to conflict with the performance of city council duties. particularly whenthe transfer of funds or property between the city and county is involved. We conclude therefore that the positions of city councilman of Galveston andcounty auditor of Galveston County are incompatible as amatter of law.
The incompatibility of these two offices invites npplication of the commonlawdoctrine ofvacation:

Persons who accept and qualify for offices that are incompatible with offices they already hold ipso facto relinquish their prior posts.

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Attorney General Opinion MW-170(1980). SeePurcell v. Carrillo. 349 S.W.2d 263 (Tex. Civ. App. - SanAntonio-i-961, nowrit); Ramirez v. Flores, 505 S.W.2d406 (Tex. Civ. App. - SanAntonio 1973, writ ref'd n.r.e.); Attorney General Opinions MU-170(1980); H-155, E-117 (1973). Accordingly, weconclude that the indlvldual involved here vacated the office of city councilman when he accepted the position of county auditor.
SUMMARY

The common law doctrine of incompatibility prohibit8 a Galveston city council member from simultaneously serving as Galveston county auditor.

JIrzJ&th Attorney General of Texas
TOM GRREN First Assistant Attorney General
DAVIDR.RICEARDS Executive Assistant Attorney General Prepared byRickGilpin Assistant Attorney General
APPP.OVRD: OPINION

COMMITTEE Rick Gilpin. Chairman Colin Carl Susan Garrison JimMoellinger NancySutton BruceYoungblood

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