Can a Texas county attorney also work as a city attorney for a city in the county?

Texas AG Opinion JC-0054: A County Attorney Serving Also as a City Attorney

Plain-English summary

The Brewster County Attorney asked whether he could also serve as an attorney for the City of Alpine, a city in his county. The opinion concluded he could, because his city role was employment rather than a public office, and no statute or common-law doctrine barred the combination.

Article XVI, section 40 of the Texas Constitution forbids any person from holding "more than one civil office of emolument" at the same time. But a person holds an "office," as opposed to mere employment, only if he exercises a "sovereign function of the government largely independent of the control of others" (the Aldine test). The county attorney was appointed by and served at the will of the city council and performed services as the council directed, so he did not exercise a sovereign function independent of others' control. He therefore was not an officer in his city-attorney capacity, and section 40 did not preclude the dual service. The opinion also walked through the common-law incompatibility doctrine, which has two branches. The self-appointment branch (an officer cannot appoint or employ himself to a position under his control, from Ehlinger v. Clark) did not apply, because the city attorney was not the county attorney's appointee or employee. The conflicting-loyalties branch (a person cannot hold two offices where one might impose its policies on the other, from Thomas v. Abernathy County Line Indep. Sch. Dist.) also did not apply, because that concern does not come into play when one of the two positions is merely employment. Finally, county attorneys subject to the Professional Prosecutors Act are barred from the private practice of law, including advising municipalities, but the Brewster County Attorney was not subject to that Act (he was not on the section 46.002 list), so it did not preclude the city work. The opinion closed by cautioning that the dual service, while not legally barred, could still produce particular ethical conflicts, and advised consulting the Texas Disciplinary Rules of Professional Conduct.

Currency note

This opinion was issued in 1999. 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. Whether a particular county attorney is subject to the Professional Prosecutors Act turns on the current statutory list, which has changed over time.

Common questions

Can a Texas county attorney moonlight as a city's attorney?
Under this opinion, yes, at least where the county attorney is not covered by the Professional Prosecutors Act. The opinion held that the city-attorney role was employment, not an office, so the constitution did not bar holding both.

Why doesn't the ban on holding two offices apply?
Because the city-attorney role was not an "office." The opinion applied the Aldine test: a person holds an office only if he exercises a sovereign government function largely independent of others' control. A lawyer who serves at the will of and under the direction of the city council does not.

What about the incompatibility doctrine?
Neither branch applied. The county attorney did not appoint or employ the city attorney (so no self-appointment problem), and the conflicting-loyalties branch does not apply when one of the two positions is mere employment rather than an office.

Does the Professional Prosecutors Act change the answer?
Only for prosecutors the Act actually covers. Those prosecutors cannot engage in the private practice of law, including advising cities. The Brewster County Attorney was not on the Act's list, so it did not bar the city work.

Are there any catches?
Yes. The opinion warned that even though the dual service is not legally prohibited, specific situations could create ethical conflicts, and the attorney should consult the Texas Disciplinary Rules of Professional Conduct.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution bars a person from holding more than one civil office of emolument at the same time. The opinion applied the office-versus-employment test from Aldine Indep. Sch. Dist. v. Standley (an officeholder exercises a sovereign function largely independent of others' control), as applied in Tilley v. Rogers, and cited JM-1266 (1990), LO-89-58, and LO-96-148 for the conclusion that an attorney serving at a council's pleasure is not an officer. The common-law incompatibility doctrine has a self-appointment branch (Ehlinger v. Clark; LA-114 (1975)) and a conflicting-loyalties branch (Thomas v. Abernathy County Line Indep. Sch. Dist.; JM-129 (1984), quoted in JM-1266 (1990)), neither of which reaches a position that is merely employment (LO-96-148). The Professional Prosecutors Act, chapter 46 of the Government Code, bars covered prosecutors from the private practice of law (JC-0034 (1999)); section 46.002 lists the prosecutors subject to the Act, and the Brewster County Attorney was not among them.

Citations

Statutory and constitutional provisions:

• Tex. Const. art. XVI, § 40
• Tex. Gov't Code Ann. ch. 46 (Vernon 1988 & Supp. 1999); § 46.002 (Vernon Supp. 1999)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Tilley v. Rogers, 405 S.W.2d 220 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)

Attorney General opinions referenced: JM-1266 (1990), JM-129 (1984), JC-0034 (1999), LA-114 (1975), LO-89-58, LO-96-148.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0054
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0054.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS
JOHN CORNYN

May 26, 1999

The Honorable J. Steven Houston
Brewster County Attorney
P.O. Box 323
Alpine, Texas 79831

Opinion No. JC-0054

Re: Whether the Brewster County Attorney may simultaneously serve as an attorney for the City of Alpine (RQ-0041)

Dear Mr. Houston:

You ask whether you may serve as both Brewster County Attorney and an attorney for the City of Alpine, which is located in the county. We conclude that because you are employed by the city and are not an officer, your city service does not implicate either the constitutional bar on dual-office holding, see TEX. CONST. art. XVI, § 40, or the common-law doctrine of incompatibility. In addition, because the Professional Prosecutors Act, TEX. GOV'T CODE ANN. ch. 46 (Vernon 1988 & Supp. 1999), does not apply to the Brewster County Attorney, that Act does not preclude you from serving as an attorney to a city.

Article XVI, section 40 of the Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." For purposes of this provision, a person holds an "office" as opposed to mere employment if he or she "exercises a 'sovereign function of the government largely independent of the control of others.'" Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2 (quoting Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)); see also Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.) (applying Aldine test to determine that state college professor did not hold office within meaning of article XVI, section 40).

We conclude that you do not hold an office in your capacity as attorney for the City of Alpine. You inform us that you are appointed by and serve at the will of the city council and that you "perform all services incident to [your] position as directed by the Council." Letter from J. Steven Houston, Brewster County Attorney, to Elizabeth Robinson, Chair, Opinion Committee 2 (Mar. 12, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"]. Given that you serve at the will and under the direction of the city council, you do not exercise a sovereign function of the city largely independent of the control of others. Thus, in your capacity as attorney for the City of Alpine, you are not an officer for purposes of article XVI, section 40. See Tex. Att'y Gen. LO-89-58 (concluding that person who served as attorney under the direction and at the pleasure of a city council did not hold an office for purposes of article XVI, section 40); see also Tex. Att'y Gen. LO-96-148 (concluding that article XVI, section 40 did not preclude elected county attorney from serving as assistant district attorney since an assistant district attorney is not an officer). Accordingly, article XVI, section 40 does not preclude you from serving as both county attorney and attorney for the City of Alpine.

We note that the common-law doctrine of incompatibility may also preclude a public officer from holding another position. This doctrine prohibits an officer from appointing or employing himself to a position under his control. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) (holding that doctrine of incompatibility disqualifies officers with appointing power "for appointment to the offices to which they may appoint"); Tex. Att'y Gen. LA-114 (1975) at 2-4 (extending the Ehlinger rationale to preclude a person from serving as both school board trustee and teacher employed by the district). Because an attorney for the City of Alpine is not an appointee or employee of the Brewster County Attorney, this prohibition does not apply to your situation. See Tex. Att'y Gen. LO-96-148 (concluding that doctrine of incompatibility prohibition against self-appointment and self-employment did not apply to county attorney's employment as assistant district attorney given that county attorney did not appoint or supervise assistant district attorneys).

Courts, recognizing the potential danger for conflicting loyalties, have also extended the doctrine of incompatibility to preclude a person from holding "'two offices where one office might thereby impose its policies on the other or subject it to control in some other way,'" Tex. Att'y Gen. Op. No. JM-1266 (1990) at 4 (quoting Tex. Att'y Gen. Op. No. JM-129 (1984)). See Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (holding that offices of school trustee and city alderman were incompatible given board of aldermen's powers over school property and authority to regulate health and safety within city). This office has concluded, however, that the concern with the potential for conflicting loyalties does not come into play when one of the two positions is merely an employment. See Tex. Att'y Gen. Op. No. JM-1266 (1990) at 4. For this reason, we conclude that the doctrine of incompatibility prohibition against conflicting loyalties does not apply to your situation. See Tex. Att'y Gen. LO-96-148 (concluding that doctrine of incompatibility prohibition against conflicting loyalties did not apply to county attorney's employment as assistant district attorney given that latter position is merely an employment).

In addition, we note that county attorneys subject to the Professional Prosecutors Act, TEX. GOV'T CODE ANN. ch. 46 (Vernon 1988 & Supp. 1999), are precluded from engaging in the private practice of law, including providing legal advice to municipalities. See Tex. Att'y Gen. Op. No. JC-0034 (1999) at 4 (prosecutor subject to Act may not enter into consultation agreement with municipality). You inform us that the Brewster County Attorney is not subject to the Professional Prosecutors Act. Request Letter at 2; see also TEX. GOV'T CODE ANN. § 46.002 (listing prosecutors subject to the Act) (Vernon Supp. 1999). Accordingly, you are not precluded from serving as an attorney to a city by the strictures of that Act.

In conclusion, based on the information provided in your letter, we conclude that neither article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility precludes you from serving as both Brewster County Attorney and an attorney for the City of Alpine. In addition, because the Professional Prosecutors Act does not apply to the Brewster County Attorney, that Act does not preclude you from serving as an attorney to a city. In sum, we conclude that you may serve as both Brewster County Attorney and an attorney for the City of Alpine. Finally, we note that while this dual service is not precluded by the Texas Constitution or the common law, there may be particular situations in which ethical conflicts arise. You should, of course, consult the Texas Disciplinary Rules of Professional Conduct with regard to such conflicts.

SUMMARY

A county attorney who is not subject to the Professional Prosecutors Act, TEX. GOV'T CODE ANN. ch. 46 (Vernon 1988 & Supp. 1999) may simultaneously serve as an attorney employed at the will and under the direction of a city council of a city located in the county.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General