Can a Texas state employee run for and hold an elected county office while keeping both salaries?

Plain-English summary

Representative Ryan Guillen, chair of the House Committee on Culture, Recreation & Tourism, asked the Attorney General about the legality and constitutionality of a state employee running for an elected county office and then assuming that office. He did not name a specific state job or a specific county office, so the AG answered in general terms, starting from the rule that any constitutional or statutory provision restricting the right to hold public office is strictly construed against ineligibility.

On the first question, becoming a candidate, the AG found no Texas statute that bars a state employee from running for county office. Government Code section 556.003 recognizes a state employee's freedom of association and political participation, and section 556.004 forbids using official authority to affect an election but does not stop an employee from seeking office. The federal Hatch Act, however, prohibits a state employee from being a candidate for elective office when that employee's salary is paid completely by federal funds. Whether a given person's employment falls under the Hatch Act is a fact question the AG could not decide.

On the second question, holding the office and keeping both salaries, the AG looked at Article 16, subsection 40(b) of the Texas Constitution. A Texas court had already held that the phrase "other local governmental districts" in that provision does not include a county, so the provision does not stop a paid state employee from also serving and being paid as a county commissioner. The AG concluded that subsection 40(b) does not prohibit a state employee from assuming an elected county office and does not require giving up the salary for either position.

Currency note

This opinion was issued in 2013. 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 House Committee on Culture, Recreation & Tourism (as the opinion described it): The opinion told the committee that, as a matter of state law, a state employee could both run for and hold an elected county office without giving up either salary, because no Texas statute barred candidacy and Article 16, subsection 40(b) did not reach county offices. The opinion flagged one federal limit: under the Hatch Act, an employee whose salary is paid completely by federal funds may not be a candidate for elective office. It also noted that whether any particular employee is covered by the Hatch Act is a fact question the opinion process does not resolve, and that individual state agencies may have their own policies limiting employees' candidacies.

Common questions

Did the AG say a state employee could run for county office?
As a matter of Texas law, yes. The opinion found no Texas statute prohibiting a state employee from becoming a candidate for an elected county office.

What about the federal Hatch Act?
The AG explained that the Hatch Act prohibits a state employee from being a candidate for elective office if the employee's salary is paid completely by federal funds. Whether a specific job is covered by the Hatch Act was treated as a fact question outside the scope of the opinion.

Could the employee keep both salaries after taking office?
According to the opinion, Article 16, subsection 40(b) of the Texas Constitution did not bar a state employee from assuming an elected county office and did not require renouncing the salary for either position, because a Texas court had held that "other local governmental districts" in that provision does not include a county.

Did the opinion cover every state job and every county office?
No. The AG answered in general terms because the request did not identify a particular position, and it noted that specific state agencies may have their own policies limiting whether their employees can run for office.

Background and statutory framework

The opinion opened with the canon that provisions restricting the right to hold public office are strictly construed against ineligibility, citing In re Carlisle, 209 S.W.3d 93, 96 (Tex. 2006) (orig. proceeding). On candidacy, it relied on Government Code section 556.003 (recognizing state employees' political-participation rights) and section 556.004(c) (barring use of official authority to affect elections, but not candidacy itself), and on the federal Hatch Act, 5 U.S.C.A. § 1502(a)(3). It cited Tex. Att'y Gen. Op. No. JM-957 (1988) for the point that Hatch Act coverage of a particular person is a fact question.

On dual service, the opinion analyzed Article 16, subsection 40(b) of the Texas Constitution, which lets state employees serve on the governing bodies of school districts, cities, towns, and "other local government districts" without pay for those seats. Following Cnty. of Maverick v. Ruiz, 897 S.W.2d 843, 847 (Tex. App.-San Antonio 1995, no writ), which held that a county is not an "other local governmental district" under that provision, the AG concluded subsection 40(b) did not bar a paid state employee from also serving and being paid as a county officer. It pointed to its own letter opinions LO-98-039 and LO-90-039 as prior treatments of similar dual-service questions. A footnote, citing Davis v. City of Dallas, 992 S.W.2d 621, 624-25 (Tex. App.-Dallas 1999, no pet.), reserved the possibility that individual agencies' own policies could still limit an employee's candidacy.

Citations

Cases:

• In re Carlisle, 209 S.W.3d 93, 96 (Tex. 2006) (orig. proceeding)
• Cnty. of Maverick v. Ruiz, 897 S.W.2d 843, 847 (Tex. App.-San Antonio 1995, no writ)
• Davis v. City of Dallas, 992 S.W.2d 621, 624-25 (Tex. App.-Dallas 1999, no pet.)

Statutes and regulations:

• Tex. Gov't Code Ann. § 556.003 (West 2012)
• Tex. Gov't Code Ann. § 556.004 (including § 556.004(c))
• 5 U.S.C.A. § 1502(a)(3) (West Supp. 2013) (Hatch Act)
• Tex. Const. art. XVI, § 40(a)
• Tex. Const. art. XVI, § 40(b)
• 5 C.F.R. § 151.101(f), (i) (2013)

Other authority:

• Tex. Att'y Gen. Op. No. JM-957 (1988) at 2
• Tex. Att'y Gen. LO-98-039
• Tex. Att'y Gen. LO-90-039

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1026
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1026.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

November 22, 2013

The Honorable Ryan Guillen Opinion No. GA-1026
Chair, Committee on Culture,
Recreation & Tourism Re: Whether a state employee may run for
Texas House of Representatives and assume an elected county office
Post Office Box 2910 (RQ-1128-GA)
Austin, Texas 78768-2910

Dear Representative Guillen:

You ask about "the legality and constitutionality of a state employee running for an elected county office and assuming such office."[1] You do not specify the position that the state employee holds or the county office for which the employee intends to run.[2] We therefore answer your request in general terms. In doing so, we begin with the principle that "'any constitutional and statutory provision which restricts the right to hold public office should be strictly construed against ineligibility.'" In re Carlisle, 209 S.W.3d 93, 96 (Tex. 2006) (orig. proceeding) (citation omitted).

We first address the ability of a state employee to become a candidate for an elected county office. Your request letter does not direct us to any specific state statute that would prohibit a state employee from running for county office. Government Code section 556.003 recognizes that "[a] state employee has the rights of freedom of association and political participation guaranteed by the state and federal constitutions except as provided by Section 556.004." TEX. GOV'T CODE ANN. § 556.003 (West 2012). Section 556.004 prohibits state employees from using their official authority to "interfere with or affect the result of an election or nomination of a candidate or to achieve any other political purpose," but it does not prohibit a state employee from seeking candidacy for elective office. Id. § 556.004(c). Furthermore, we find no other Texas statutes that prohibit state employees from running for county office.[3]

Under the federal Hatch Act, however, a "State ... employee may not ... if the salary of the employee is paid completely, directly or indirectly, by loans or grants made by the United States or a Federal agency, be a candidate for elective office." 5 U.S.C.A. § 1502(a)(3) (West Supp. 2013).[4] The determination of whether a particular person's employment is subject to the Hatch Act is a fact question beyond the scope of an attorney general opinion, but we can advise that under federal law a state employee is prohibited from becoming a candidate for elective office if the salary of the employee is paid completely by federal funds. See id.; see also Tex. Att'y Gen. Op. No. JM-957 (1988) at 2 (concluding that whether a particular individual is subject to the Hatch Act is a fact question that cannot be resolved by the opinion process).

We next address your question concerning the state employee's ability to assume office once elected and retain salaries for both positions. You specifically question whether article 16, subsection 40(b) of the Texas Constitution restricts the state employee from doing so. Request Letter at 1. Article 16, subsection 40(b) provides:

State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local government districts. Such State employees or other individuals may not receive a salary for serving as members of such governing bodies ....

TEX. CONST. art. XVI, § 40(b). In analyzing article 16, subsection 40(b), a Texas court has concluded that "the term 'other local governmental districts' does not include a county" and therefore does not prohibit a paid state employee from also serving and receiving a salary as a county commissioner. Cnty. of Maverick v. Ruiz, 897 S.W.2d 843, 847 (Tex. App.-San Antonio 1995, no writ). On multiple occasions, this office has addressed similar questions concerning whether elected county officials may also serve as state employees without renouncing their salaries. See, e.g., Tex. Att'y Gen. LO-98-039, at 1-2 (addressing whether a legislator may employ a county commissioner); LO-90-039, at 1-2 (addressing whether a county attorney may serve as a professor at a state university). Relying on Ruiz, this office has concluded that a county commissioner and other elected county officials may also serve as state employees and may be paid for both positions. Tex. Att'y Gen. LO-98-039, at 2. Thus, article 16, subsection 40(b) of the Texas Constitution does not prohibit a state employee from assuming elected county office, nor does it require the renouncement of the salary for either position.

SUMMARY

Texas statutes do not prohibit a state employee from becoming a candidate for elected county office. The federal Hatch Act, however, prohibits a state employee from becoming a candidate for elective office if the salary of the employee is paid completely by federal funds.

Article 16, subsection 40(b) of the Texas Constitution does not prohibit a state employee from assuming elected county office.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Ryan Guillen, Chair, Comm. on Culture, Rec. & Tourism, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Apr. 23, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] In answering your questions, we presume that by "state employee" you mean a person that is an at-will employee and not someone that holds civil office. Article 16, subsection 40(a) provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument," except in limited circumstances. TEX. CONST. art. XVI, § 40(a).

[3] Specific state agencies may have policies that limit their employees' ability to run for office, and this opinion should not be construed as addressing such policies. See Davis v. City of Dallas, 992 S.W.2d 621, 624-25 (Tex. App.-Dallas 1999, no pet.) (upholding a Dallas City Charter provision that required city employees to forfeit their position with the city upon becoming a candidate for elective office).

[4] Federal regulations define "elective office" as "any office which is voted upon at" a primary, general, or special election, "but does not include political party office." 5 C.F.R. § 151.101(f), (i) (2013).