The Attorney General of Texas 

JIM MATTOX 

Attorney General 

March 5. 1984 

Supreme Court Building 

P. 0. BOX 12546 

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 

El Paso. 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 

San Antonio. TX. 76205.2797 

5121225.4191 

An Equal OppOrtunityI 

Affirmative Action Employer 

Rouorable Lloyd Crias 

chairman 

Committee on Labor and Employment 

Relations 

Texas Eouae of Representatives 

P. 0. Box 2910 

Austin. Texas 78769 

opinion No. .JM-133 

Re: Whether an individual may 

serve simultaneously as county 

auditor and city councilman of 

a city located in that county 

Dear Representative Criaa: 

You inform us that an individual was elected to the city council 

of Galveston, Texas, and subsequently was appointed to be county 

auditor of Galveston County. The materials included with your letter 

to this office indicate that he receives a salary from the 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 by law from simultaneously holding both offices, and if so, 

whether the city office is uow vacant. You also 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 any other matter involving the county 

and park board requiring city council action. 

Upon examination of the relevant statutes, we conclude that the 

coavaon law doctrine of incompatibility prohibits one person from 

simultaneously occupying the offices of city councilman and county 

auditor of a county in which the city is located. 

,The doctrine of incompatibility prohibits one person from 

occupying two offices when one office may "thereby impose ita policies 

on the other or subject it to control in some other wav." At tornev 

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,2d 815 (Tex. Civ. App. - San 

Antonio 1932, no writ). In this respect, we observe that city council 

members may authorize agreements between the city and county to 

p. 562 
Honorable Lloyd Crisa - Page 2 (JM-133) 

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 and programs. 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 a county auditor may not 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 and records 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 law governing county finances. 

V.T.C.S. art. 1651. The auditor 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 may not expend funds without the approval of the 

county auditor. Smith v. McCoy, 533 S.W.Zd 457, 459 (Tex. Civ. App. - 

Dallas 1976, writ dism’d). The auditor in such instances may withhold 

approval of payments, though the refusal to approve payments may be 

neither arbitrary nor in contravention of law. Id. at 460. See also 

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 when the transfer of 

funds or property between the city and county is involved. We 

conclude therefore that the positions of city councilman of Galveston 

and county auditor of Galveston County are incompatible as a matter of 

law. 

The incompatibility of these two offices invites npplication of 

the common law doctrine of vacation: 

Persons who accept and qualify for offices that 

are incompatible with offices they already hold 

ipso facto relinquish their prior posts. 

p. 563 
Boaorable Lloyd CrfsS - Page 3 (~~-133) 

Attorney General Opinion MW-170 (1980). See Purcell v. Carrillo. 349 

S.W.2d 263 (Tex. Civ. App. - San Antonio-i-961, no writ); Ramirez v. 

Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd 

n.r.e.); Attorney General Opinions MU-170 (1980); H-155, E-117 (1973). 

Accordingly, we conclude 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 

DAVID R. RICEARDS 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPP.OVRD: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

Bruce Youngblood 

p. 564