Can a Texas county clerk also serve as a director of a river authority at the same time?

TX AG Opinion GA-0250: County Clerk, River Authority Dual

Plain-English summary

The Sabine River Authority asked whether a county clerk could also serve as one of the Authority's directors at the same time. The Texas Constitution's article XVI, section 40 bars anyone from holding more than one "civil office of emolument," meaning a paid public office, at once. A county clerk clearly holds one such office. A Sabine River Authority director, who is appointed by the governor and exercises governmental powers including eminent domain, held one too, because state law entitled directors to a twenty-five dollar per diem for each day of service, and even a modest, non-reimbursement payment counts as an "emolument."

The opinion concluded the two offices could still be held by the same person, because Government Code section 574.005 changes the analysis. That statute lets someone who already holds a local elected office, like a county clerk, be appointed to the governing body of a state agency, but bars that person from being compensated for the appointed role beyond expense reimbursement. Because the Sabine River Authority is a state agency and the county clerk would have to forgo the director's per diem to take the seat, the appointed director's office is no longer an "office of emolument" for that person, so the constitutional dual-office bar does not apply. The opinion also checked the separate common-law doctrine against incompatible offices and found no conflict: the two offices' duties do not clash, neither office appoints the other, and neither is an employee of the other.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2004)

County clerks considering a river authority director appointment: The opinion meant a county clerk could accept an appointment as a Sabine River Authority director without giving up the clerk's office, provided the clerk did not accept the director's per diem, since taking that pay would have made the director's seat a second office of emolument in violation of article XVI, section 40.

The Sabine River Authority and similar river authorities: The opinion confirmed that a director's seat was, by default, a civil office of emolument because of the statutory per diem, and that this status could only be avoided for a dual officeholder through the specific mechanism in Government Code section 574.005, not simply by the director privately declining to collect the payment.

Other local elected officials weighing a state agency board seat: The opinion illustrated the general framework: accepting a state agency appointment while holding a paid local office required giving up compensation for the appointed role under section 574.005, and even then, the common-law incompatibility doctrine (conflicting loyalties, self-appointment, or self-employment) still had to be checked separately.

Common questions

Could a Texas county clerk take a paid seat as a river authority director without losing the clerk's office?
No, according to this 2004 opinion, not while collecting both salaries. The per diem attached to a river authority director's seat made it a second civil office of emolument, and the Texas Constitution's article XVI, section 40 prohibited holding two such offices simultaneously.

How could the county clerk take the river authority seat and stay county clerk at the same time?
By forgoing the director's per diem. The opinion explained that Government Code section 574.005 let a local elected official be appointed to a state agency's governing body but barred compensation for that appointed role beyond expense reimbursement, which took the appointed seat out of "office of emolument" status entirely.

Could the county clerk just personally promise not to collect the per diem instead of relying on section 574.005?
No. The opinion noted that compensation attached to an office is legally an incident of the office itself that an officeholder cannot simply repudiate or refuse in advance, citing Markwell v. Galveston County and Morrison v. City of Fort Worth; only the statutory mechanism in section 574.005 actually detached the compensation from the office.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution provided that no person could hold or exercise more than one civil office of emolument at the same time, with certain listed exceptions that did not cover either office at issue here. A county clerk, as a paid elected constitutional officer under article V, section 20, clearly held such an office. A Sabine River Authority director likewise held one: the Authority's directors, appointed by the governor and confirmed by the senate, exercised governmental powers including eminent domain, and a 1955 amendment to the Authority's enabling act entitled each director to a twenty-five dollar per diem for each day of necessary service, on top of actual expenses. Texas case law and prior attorney general opinions established that river authority directors exercised sovereign government functions largely independent of others' control and that even a modest per diem, not tied to expense reimbursement, counted as an emolument, so a director's seat was a civil office of emolument regardless of whether any particular director actually accepted the payment.

Government Code section 574.005 supplied the escape valve. It provided that an individual holding an elected or appointed local government office could be appointed to the governing body of a state agency if otherwise eligible, but could not receive compensation for serving on that governing body beyond reimbursement for reasonable and necessary expenses under other law. Because the Sabine River Authority was itself established as a state agency and a county clerk qualifies as a local government officer for purposes of the statute, section 574.005 detached the per diem from the director's seat when held by a person, like a county clerk, who already held a local elected office. That detachment eliminated the appointed seat's status as an office of emolument for that individual, removing the article XVI, section 40 barrier.

The opinion also addressed the separate common-law doctrine of incompatibility, which independently bars a person from holding two offices whose duties conflict (conflicting loyalties), from appointing oneself to another public entity (self-appointment), or from holding employment subordinate to one's own public office (self-employment). The opinion found none of the three applied: the county clerk's and the river authority director's duties did not overlap or conflict, since neither office had taxing authority and neither entity was authorized to contract with the other; the county clerk did not appoint the river authority directors, since the governor did; and neither position was an employee of the other. Prior opinions, including JM-594 (1986) regarding a director of the Angelina and Neches River Authority and JM-172 (1984), supported treating a river authority director's seat as a civil office of emolument for similar reasons.

Citations

Statutes:

• TEX. CONST. art. XVI, § 40
• TEX. CONST. art. V, § 20
• TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999)
• TEX. LOC. GOV'T CODE ANN. ch. 82 (Vernon 1999)
• TEX. GOV'T CODE ANN. § 51.402
• TEX. GOV'T CODE ANN. § 574.005(b) (Vernon Supp. 2004-05)
• TEX. GOV'T CODE ANN. § 574.005(a)(1)-(2)
• Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 1, 1949 Tex. Gen. Laws 193, 194
• Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 3, 1949 Tex. Gen. Laws 193, 194
• Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 7, 1949 Tex. Gen. Laws 193, 195
• Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 14, 1949 Tex. Gen. Laws 193, 196-97
• Act of Apr. 6, 1955, 54th Leg., R.S., ch. 101, § 2, 1955 Tex. Gen. Laws 379, 379-80

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944)
• Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)
• Markwell v. Galveston County, 186 S.W.2d 273 (Tex. Civ. App.-Galveston 1945, writ ref'd)
• Morrison v. City of Fort Worth, 155 S.W.2d 908 (Tex. 1941)
• Broom v. Tyler County Comm'rs Court, 560 S.W.2d 435 (Tex. Civ. App.-Beaumont 1977, no writ)
• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0250
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0250.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 24, 2004

Mr. Jerry Clark
Executive Vice President and General Manager
Sabine River Authority of Texas
Post Office Box 579
Orange, Texas 77631

Opinion No. GA-0250

Re: Whether a county clerk may serve simultaneously as a director of the Sabine River Authority (RQ-0203-GA)

Dear Mr. Clark:

You ask whether a county clerk may serve simultaneously as a director of the Sabine River Authority.[1]

Specifically, you ask three questions:

1. Does the elected office of County Clerk and an appointment as a Director of the Sabine River Authority of Texas constitute a dual civil office of emolument such as is prohibited by Article XVI, Section 40, of the Texas Constitution?

2. Does a per diem, as granted by the 1955 Amendments to Chapter 101 of the Session Laws as amended to Sabine River Authority directors constitute an emolument as prohibited for dual office by Article XVI, Section 40, of the Texas Constitution?

3. Can the per diem contemplated by the 1955 Amendments to Chapter 101 of the Session Laws as amended be disavowed, relinquished or rescinded in any manner as to remove such a disqualification?

Request Letter, supra note 1, at 1.

Article XVI, section 40 of the Texas Constitution provides, in relevant part, that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40. As a paid, elected constitutional officer, the county clerk holds a civil office of emolument for the purposes of article XVI, section 40. See TEX. CONST. art. V, § 20 (establishing the office of county clerk); see also TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999) (providing county commissioners court authority to set county clerk's salary). The office of county clerk does not fall within any of the exceptions to article XVI, section 40. See TEX. CONST. art. XVI, § 40.

A director of the Sabine River Authority holds a civil office of emolument as well. Management and control of the affairs of the Sabine River Authority district are vested in its board of directors, which consists of members appointed by the governor and confirmed by the senate. See Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 3, 1949 Tex. Gen. Laws 193, 194. Various governmental powers are conferred upon the directors of the river authority, including that of eminent domain. See id. § 14, at 196-97. The directors are to receive twenty-five dollars for each day of service necessary to discharge their duties. See Act of Apr. 6, 1955, 54th Leg., R.S., ch. 101, § 2, 1955 Tex. Gen. Laws 379, 379-80 (amending Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 7, 1949 Tex. Gen. Laws 193, 195, to increase the ten dollar per diem to twenty-five dollars).

The directors of the river authority exercise sovereign functions of the government largely independent of the control of others, and they receive compensation for serving. See Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). Furthermore, the established per diem is an "emolument" for purposes of article XVI, section 40, because the per diem is a pecuniary profit, gain, or advantage paid to an officer and is not merely a reimbursement for expenses. See Act of Apr. 6, 1955, 54th Leg., R.S., ch. 101 § 2, 1955 Tex. Gen. Laws, 379, 379-80 (the per diem is in addition to actual expenses); Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944); Willis v. Potts, 377 S.W.2d 622 (Tex. 1964) (even a token payment constitutes an emolument). Therefore, a director of the Sabine River Authority, without reference to anything else, occupies a civil office of emolument within article XVI, section 40 of the Texas Constitution. See Tex. Att'y Gen. Op. No. JM-594 (1986) at 1-2 (determining, for similar reasons expressed here, that a director of the Angelina and Neches River Authority occupies a civil office of emolument); see also Tex. Att'y Gen. Op. No. JM-172 (1984) at 3 (directors of river authorities are not included within exception in article XVI, section 40 for directors of soil and water conservation districts).

You also ask if the per diem may be "disavowed, relinquished or rescinded in any manner" to avoid triggering article XVI, section 40. Request Letter, supra note 1, at 1 (question 3). Judicial decisions and this office have determined that compensation attached to an office is an incident of office that the office holder cannot repudiate. See Markwell v. Galveston County, 186 S.W.2d 273 (Tex. Civ. App.-Galveston 1945, writ ref'd); Tex. Att'y Gen. Op. No. JM-333 (1985); see also Morrison v. City of Fort Worth, 155 S.W.2d 908, 910 (Tex. 1941) (public officers cannot estop themselves from collecting the full compensation by agreeing to accept less or actually accepting less); Broom v. Tyler County Comm'rs Court, 560 S.W.2d 435, 437 (Tex. Civ. App.-Beaumont 1977, no writ).

However, Texas Government Code section 574.005 provides that:

An individual who holds an elected or appointed local government office may be appointed to the governing body of a state agency if otherwise eligible. The individual may not receive compensation for serving on the governing body of the state agency but may be reimbursed as provided by other law for a reasonable and necessary expense incurred in the performance of an official function.

TEX. GOV'T CODE ANN. § 574.005(b) (Vernon Supp. 2004-05). For the purposes of this statute a county clerk is an elected local government office and the Sabine River Authority is a state agency. See id. § 574.005(a)(1)-(2); see also Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 1, 1949 Tex. Gen. Laws 193, 194 (establishing the Sabine River Authority as a state agency). Section 574.005, in this situation, detaches the compensation normally attached to the office of a Sabine River Authority director, which has the effect of eliminating that office as an office of emolument. Thus, provided that a county clerk is otherwise eligible, the county clerk may be appointed as a director of the Sabine River Authority to serve simultaneously in both offices without violating the Texas Constitution.

Although Government Code section 574.005 removes the constitutional barrier in this instance, we must also consider the common-law doctrine of incompatibility to determine a person's eligibility to hold two offices. See TEX. GOV'T CODE ANN. § 574.005(b) (Vernon Supp. 2004-05) ("An individual who holds an elected or appointed local government office may be appointed to the governing body of a state agency if otherwise eligible.") (emphasis added). The common-law doctrine of incompatibility prevents one from holding two public offices the duties of which are inconsistent or in conflict ("conflicting loyalties" incompatibility), appointing oneself to another public entity ("self appointment" incompatibility), or holding an employment subordinate to one's public office ("self-employment" incompatibility). See Tex. Att'y Gen. Op. No. GA-0032 (2003) at 4.

Conflicting loyalties incompatibility can arise in several situations. As a general matter, where geographical boundaries of two governmental bodies overlap, there is the potential for conflict, particularly where both entities collect taxes. See Tex. Att'y Gen. Op. No. GA-0015 (2003) at 2. It is also well established that when two governmental bodies are authorized to contract with each other, one may not serve as a member of both. Id. However, the duties of a county clerk and a director of the Sabine River Authority do not conflict, because holding both offices would not prevent one from exercising independent and disinterested judgment in either or both offices. See generally Tex. Att'y Gen. Op. No. GA-0169 (2004); Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). Neither office has taxing authority, nor are they authorized to contract with each other. Compare TEX. GOV'T CODE ANN. § 51.402 (Vernon ____), and TEX. LOC. GOV'T CODE ANN. ch. 82 (Vernon 1999) (powers and duties of county clerk), with Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 3, 1949 Tex. Gen. Laws 193 (powers and duties of Sabine River Authority director).

The incompatibilities of self-appointment and self-employment are equally inapplicable. A county clerk is elected, see TEX. CONST. art. V, § 20, and a director of the Sabine River Authority is appointed by the governor, see Act of Apr. 27, 1949, 51st Leg., R.S., ch. 110, § 3, 1949 Tex. Gen. Laws 193, 194; neither is an employee of the other. Consequently, a county clerk may serve simultaneously as a director of the Sabine River Authority.

SUMMARY

The offices of county clerk and director of the Sabine River Authority are both civil offices of emolument when occupied by separate individuals. A director of the Sabine River Authority holds a civil office of emolument regardless of whether that director accepts the compensation attached to the office. However, while article XVI, section 40 of the Texas Constitution prohibits an individual from simultaneously holding two offices of emolument, section 574.005 of the Government Code allows a local government officer to be appointed to the governing body of a state agency. Section 574.005 prohibits a local government officer from being compensated for serving in the appointed office, which prohibition renders the appointed office merely a civil office, not a civil office of emolument. Therefore, article XVI, section 40 of the Texas Constitution would not prevent a county clerk from serving simultaneously as a director of the Sabine River Authority. Furthermore, the common-law doctrine of incompatibility does not present a bar.

Very truly yours,

Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Mr. Jerry Clark, Executive Vice President and General Manager, Sabine River Authority, to Honorable Greg Abbott, Texas Attorney General (Mar. 29, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].