Can a member of a Texas county ethics commission also serve as the review officer on its screening committee?

Plain-English summary

Jo Anne Bernal, then the El Paso County Attorney, asked on behalf of the El Paso County Ethics Commission whether a member of the Commission who is a practicing attorney or former judge may serve as the review officer of the Commission's preliminary screening committee. Chapter 161 of the Local Government Code lets a qualifying county create an ethics commission, and once a complaint is filed, a standing preliminary review committee checks it for form and jurisdiction before it proceeds.

Local Government Code section 161.1551 sets the makeup of that committee: two members of the Commission, chosen and rotated as the statute spells out, plus a review officer "selected and retained by the commission." A separate subsection requires that the review officer be a practicing attorney or former judge. The Commission wanted to fill the review officer seat with one of its own members who is an attorney or former judge, and asked whether the statute allowed it.

The opinion read the statute to forbid that. Although section 161.1551(b) does not say in so many words that the review officer cannot be a Commission member, by expressly requiring two Commission members and then describing the review officer separately, the statute implied that the third seat is not for another Commission member. The opinion leaned on the interpretive maxim that naming some things signals an intent to exclude others. It added a structural reason: the statute lays out a detailed rotation for which two Commission members serve at a time, and a Commission member sitting as the review officer could not follow that rotation, a scenario the statute does not contemplate. The opinion also noted in a footnote that putting a Commission member in the review officer role would raise common-law incompatibility concerns. So a Commission member may not serve as the review officer.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The county attorney and the Ethics Commission (as the opinion held for them): The opinion answered that the Commission could not appoint one of its own members as the review officer of the standing preliminary review committee, even if that member is an attorney or former judge.

The review officer position (as the opinion described it): The opinion treated the review officer as a separate seat from the two Commission-member seats, to be filled by an attorney or former judge who is not a Commission member.

On the reasons (as the opinion described it): The opinion rested the conclusion on the statute's structure and the rotation it prescribes, and flagged common-law incompatibility as an additional concern, rather than on any single express prohibition.

Common questions

Can an ethics commission member double as the committee's review officer?
According to the opinion, no. Section 161.1551 makes the review officer a separate seat from the two commission-member seats, and the opinion read the statute as not allowing a third commission member to fill it.

Doesn't the statute say the review officer must be an attorney or former judge?
It does, but the opinion explained that meeting that qualification does not override the statute's structure, which treats the review officer as someone other than the two serving commission members.

Why can't a commission member just take the review officer seat?
The opinion pointed to the detailed rotation the statute sets for commission members; a member serving as review officer could not follow that rotation, signaling the Legislature did not intend it. The opinion also noted incompatibility concerns.

Background and statutory framework

Chapter 161 of the Local Government Code authorizes a qualifying county to create an ethics commission, Tex. Loc. Gov't Code Ann. § 161.051 (West Supp. 2011), and lets a person file a complaint with it, id. § 161.155(a) (West Supp. 2011), which a standing preliminary review committee first screens, id. § 161.158(b)-(c). Section 161.1551 sets that committee as two commission members, chosen and rotated under subsections (c) and (d), plus a review officer who must be a practicing attorney or former judge. Id. § 161.1551(b)-(e) (West Supp. 2011); id. § 161.055(a)(1); id. § 161.055(a)(2).

Reading the statute as a whole, R.R. Comm'n of Tex. v. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011); 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008), the opinion applied the maxim that expressing some things implies excluding others, Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999), and noted the common-law incompatibility doctrine, Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928), to conclude that a commission member may not serve as the review officer.

Citations

Cases:

• R.R. Comm'n of Tex. v. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008)
• Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)

Statutes:

• Tex. Loc. Gov't Code Ann. § 161.051 (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 161.155(a) (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 161.158(b)-(c)
• Tex. Loc. Gov't Code Ann. § 161.1551(b)-(e) (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 161.055(a)(1)
• Tex. Loc. Gov't Code Ann. § 161.055(a)(2)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0898
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0898.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 15, 2011

The Honorable Jo Anne Bernal Opinion No. GA-0898
El Paso County Attorney
500 East San Antonio, Room 503 Re: Whether a member of the El Paso County Ethics
El Paso, Texas 79901 Commission who is a practicing attorney or former
judge may be appointed to serve as the review officer
of a preliminary screening committee (RQ-0978-GA)

Dear Ms. Bernal:

On behalf of the El Paso County Ethics Commission (the "Commission"), you ask whether a member of the Commission may "serve as the review officer to a Preliminary Screening Committee if he or she is a practicing attorney or a former judge."[1]

Chapter 161 of the Local Government Code authorizes El Paso County to create a county ethics commission.[2] You explain in your request letter that pursuant to chapter 161, the El Paso County Commissioners Court created the Commission. Request Letter at 1; TEX. LOC. GOV'T CODE ANN. § 161.051 (West Supp. 2011) (authorizing the commissioners court to create a county ethics commission). Once the ethics commission has been created, section 161.155 of the Local Government Code allows an individual to file a complaint with the commission "alleging that a person subject to the ethics code has violated the ethics code." TEX. LOC. GOV'T CODE ANN. § 161.155(a) (West Supp. 2011). To process the complaint, chapter 161 first requires that a standing preliminary review committee review the complaint to ensure that it complies with the form and jurisdictional requirements established under chapter 161. Id. § 161.158(b)-(c). Your question relates to the composition of this standing preliminary review committee.

Section 161.1551 of the Local Government Code states, in relevant part:

(b) The standing preliminary review committee consists of:

(1) two members of the commission, determined as provided by Subsection (c); and

(2) a review officer selected and retained by the commission.

(c) The initial standing preliminary review committee consists of one commission member, chosen by lot, from the members of the commission appointed under Section 161.055(a)(1), and one commission member, chosen by lot, from the members appointed under Section 161.055(a)(2).

(d) A commission member serves on the standing preliminary review committee for six months. After the end of a commission member term on the standing preliminary review committee, service on the committee rotates so that each position on the commission serves on the committee, beginning with the initial members of the standing preliminary review committee chosen under Subsection (c) and succeeded by the next member on the list as described below:

(1) for the rotation of members appointed under Section 161.055(a)(1), the order of service is the member appointed by the county judge, followed by the members appointed by the county commissioners in order of precinct number; and

(2) for the rotation of members appointed under Section 161.055(a)(2), the order of service is the order listed by that section.

(e) The review officer must be a practicing attorney or former judge.

Id. § 161.1551(b)-(e).[3] You explain that the Commission "seeks to appoint a third Commission member who is an attorney or former judge" to serve on the preliminary review committee in the position established by section 161.1551(b)(2). Request Letter at 2. You ask whether it is permitted to do so under the statute. Id.

When construing a statute, we generally give effect to the Legislature's intent as expressed in the plain language of the statute. R.R. Comm'n of Tex. v. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). We determine legislative intent from the entire act and not just isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008). While section 161.1551(b) requires that two of the three members of the standing committee be Commission members, it does not expressly prohibit the third member from also being a member of the Commission. TEX. LOC. GOV'T CODE ANN. § 161.1551(b) (West Supp. 2011). However, by expressly requiring two Commission members to serve on the committee, the statute could be read as impliedly prohibiting an additional Commission member from serving as the third member. See Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999) (explaining the maxim that the inclusion of one provides evidence of intent to exclude others).

Furthermore, section 161.1551 establishes clear instructions to determine which two specific Commission members will serve on the standing preliminary review committee at any given time. TEX. LOC. GOV'T CODE ANN. § 161.1551(c)-(d) (West Supp. 2011). If a Commission member were allowed to serve as the third member in the position of the review officer, that Commission member would be unable to follow the rotation outlined in the statute. Id. § 161.1551(d) (explaining that the committee rotates in a specific order). The statute does not contemplate this scenario, suggesting that the Legislature did not intend for the third member of the preliminary review committee to be a Commission member.[4] For these reasons, we conclude that a Commission member may not serve as the review officer to a preliminary review committee under section 161.1551.

SUMMARY

The review officer to a preliminary standing review committee under Local Government Code subsection 161.1551(b)(2) may not be a member of the El Paso County Ethics Commission.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Jo Anne Bernal, El Paso County Attorney, to Honorable Greg Abbott, Attorney General of Texas at 1 (June 16, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] See Act of May 27, 2011, 82d Leg., R.S., ch. 1163, § 75, 2011 Tex. Gen. Laws 3024, 3037 (codified as an amendment to TEX. LOC. GOV'T CODE ANN. § 161.001). Chapter 161 is applicable only to a county with a population of 800,000 or more that is located on the international border and had a county ethics board appointed by the commissioners court prior to September 1, 2009. Id.

[3] Act of May 13, 2011, 82d Leg., R.S., ch. 160, § 5, 2011 Tex. Gen. Laws 693, 694 (codified as an amendment to TEX. LOC. GOV'T CODE ANN. § 161.1551(d)). This citation pertains to all section 161.1551 citations infra.

[4] We also note that the Commission's employment of one of its own members in the role of review officer would raise incompatibility concerns. The common-law doctrine of incompatibility has been held to bar a public employee from, at the same time, holding a public office which appoints, supervises or controls the employee. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) ("it is because of the obvious incompatibility of being both a member of a body making the appointment and an appointee of that body that the courts have with great unanimity throughout the country declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint."); Tex. Att'y Gen. Op. No. GA-0826 (2010) at 2 ("The self-employment aspect of the [incompatibility] doctrine prohibits a person from holding both an office and an employment that the office supervises.").