Can a Texas county commissioner be paid to drive an ambulance for the county EMS department?

Texas AG Opinion JC-0061: A Commissioner Cannot Be Paid to Drive the County Ambulance

Plain-English summary

A Frio County commissioner was also driving an ambulance for the county's emergency medical services (EMS) department and being paid for it, $10 per in-county run and $40 per out-of-county run, plus workers' compensation coverage. The EMS department is a department of the county (not a separate political entity), its director is hired by the commissioners court, that director supervises the drivers, and the drivers are paid out of the county budget. The Frio County Attorney asked the Attorney General whether the commissioner's oath of office, in section 81.002 of the Local Government Code, barred this pay, and whether the commissioner could fix any problem by recusing himself from EMS-related votes.

The opinion concluded the commissioner cannot be paid. Section 81.002 requires a county commissioner, before taking office, to swear that he will not be interested, directly or indirectly, in a contract with or claim against the county, except for a contract or claim expressly authorized by law or a warrant issued as a fee of office. This is a strict anti-conflict rule. The opinion first sorted out the commissioner's status: although the request called him a "volunteer," a volunteer serves with no promise of pay, and these drivers were paid. And because the county controlled the details of the work through the EMS director, the driver was an employee, not an independent contractor. An employee paid with county funds has an interest in a contract or claim against the county, and longstanding authority (Starr County v. Guerra) construes the section 81.002 oath to reach employment contracts and bar a commissioners court from employing its own members.

The opinion then addressed the two escape routes. Chapter 171 of the Local Government Code does let a commissioners court act on matters in which a member has an interest, but only as to interests in "business entities" and real property. A commissioner driving an ambulance is not operating as a business entity, and the county itself is not a business entity within chapter 171. The opinion read the catch-all "other entity recognized by law" in the chapter 171 definition to mean private entities serving business-like purposes, not an individual employee. So chapter 171 does not repeal the oath for an employment relationship between a governing-body member and the subdivision he governs. As for recusal: the section 81.002 oath incorporates the strict common-law conflict-of-interest prohibition (Bexar County v. Wentworth), and under that common law a public officer cannot cure a conflict by recusing himself (Delta Electric Construction Co. v. City of San Antonio). The opinion did not need to reach two further questions: whether the arrangement also violated common-law incompatibility, and whether workers' compensation coverage alone would create a prohibited interest.

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.

Common questions

Can a county commissioner take pay for also driving the county ambulance?
According to the opinion, no. The commissioner's oath of office (section 81.002) bars any direct or indirect interest in a contract with or claim against the county, and a paid county EMS driver has exactly that kind of interest.

Does it matter that the commissioner was called a "volunteer"?
Yes, and it cut against him. The opinion noted that a volunteer serves with no promise of pay. Because these drivers were paid and supervised by the county EMS director, the commissioner was a county employee, not a volunteer or independent contractor.

Doesn't chapter 171 let commissioners have some interests?
Only in business entities and real property. The opinion held that an individual working as a paid ambulance driver is not a "business entity," and the county is not one either, so chapter 171 does not authorize this employment.

Could the commissioner just recuse himself from EMS votes to fix it?
No. The opinion explained that the section 81.002 oath incorporates the strict common-law rule, under which a public officer cannot avoid a conflict of interest by recusing himself.

Did the opinion decide whether the workers' compensation coverage by itself was a problem?
No. The opinion expressly declined to decide whether workers' compensation coverage alone would create a prohibited interest, since section 81.002 already barred the arrangement.

Background and statutory framework

Section 81.002 of the Local Government Code sets the county commissioner's and county judge's oath, including a sworn promise not to be interested, directly or indirectly, in a contract with or claim against the county except for a contract or claim expressly authorized by law or a warrant issued as a fee of office. The opinion described this as a strict conflict-of-interest rule that, before its partial repeal by chapter 171, barred any interest no matter how small (citing H-624 (1975)), and that has been construed to reach employment contracts so a commissioners court cannot employ its own members (Starr County v. Guerra). On the volunteer/employee distinction, it cited DM-409 (1996) (a volunteer serves with no promise of remuneration) and JM-525 (1986) (the right to control details of work marks an employee).

On chapter 171, the opinion quoted DM-279 (1993) explaining how chapter 171 and section 81.002 are harmonized, and analyzed the definition of "business entity" in section 171.001(2), reading "other entity recognized by law" (per JM-852 (1988)) to mean private business-like entities. It cited LO-94-055 (an attorney's sole proprietorship is a business entity) and DM-267 (1993) and JM-852 (1988) (a city and a state university are not business entities) to show the county is not a business entity. It referenced Health and Safety Code chapter 776 (emergency services districts) to confirm the EMS department here is a county department, not a separate entity. On recusal, it relied on Bexar County v. Wentworth (the oath incorporates the common-law prohibition) and Delta Electric Construction Co. v. City of San Antonio (recusal does not cure a common-law conflict). It noted Labor Code section 504.012(a) (workers' compensation for volunteer EMS personnel) but did not decide the coverage question, and pointed to DM-279 (1993) for other enactments that repeal section 81.002 by implication. A footnote acknowledged a treatise (Brooks, County and Special District Law) suggesting a broader reading of "business entity."

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. §§ 81.002, 81.002(a) (Vernon 1988); §§ 171.001(2), 171.004 (Vernon 1988 & Supp. 1999)
• Tex. Health & Safety Code Ann. ch. 776 (Vernon 1992 & Supp. 1999)
• Tex. Lab. Code Ann. § 504.012(a) (Vernon 1996)

Cases:

• Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App.-San Antonio 1956, no writ)
• Bexar County v. Wentworth, 378 S.W.2d 126 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.)
• Delta Elec. Constr. Co. v. City of San Antonio, 437 S.W.2d 602 (Tex. Civ. App.-San Antonio 1969, writ ref'd n.r.e.)

Attorney General opinions referenced: DM-279 (1993), DM-267 (1993), DM-409 (1996), JM-525 (1986), JM-852 (1988), H-624 (1975), LO-94-055.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0061
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0061.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

June 3, 1999

The Honorable James Warren Smith, Jr.
Frio County Attorney
500 East San Antonio Street, Box 1
Pearsall, Texas 78061-3100

Opinion No. JC-0061

Re: Whether a county commissioner may be paid by the county for driving an ambulance for the county emergency medical services department (RQ-1193)

Dear Mr. Smith:

You ask whether a county commissioner may be paid by the county for driving an ambulance for the county emergency medical services ("EMS") department. We conclude that Local Government Code section 81.002 precludes a county commissioner from receiving such payments.

You provide the following facts: Drivers for the county EMS department, including the commissioner at issue, are paid on a "run-by-run" basis. They receive $10.00 for an "in-county run" and $40.00 for an "out-of-county run," and they are also covered by the county's workers' compensation program. We understand from your letters that the EMS department is a department of the county, rather than a separate political entity such as an emergency services district. See, e.g., TEX. HEALTH & SAFETY CODE ANN. ch. 776 (Vernon 1992 & Supp. 1999) (providing for emergency services districts in counties with populations less than 125,000). The county's EMS director is hired by the commissioners court. The EMS director supervises the EMS department personnel, including the ambulance drivers. The commissioners court sets the salary of the EMS director and the EMS department budget. EMS drivers are paid from funds allocated to the EMS department in the county budget. Based on the information you have provided, we assume that drivers for the county EMS department are paid by the county with county funds.

Although your letter's description of the legal status of ambulance drivers' relationship with the county is somewhat ambiguous, based on the information you have provided we believe that the relationship comes closest to an employment contract. While you describe the commissioner as a volunteer EMS driver, you also inform us that the drivers are paid by the county and supervised by the county EMS director. Generally, a volunteer is a person who serves with no promise of remuneration. See Tex. Att'y Gen. Op. No. DM-409 (1996) at 5-6. That is not the case here. In addition, we note that a person is an employee, rather than an independent contractor, if the employer has the right to control details of the work. See generally Tex. Att'y Gen. Op. No. JM-525 (1986) at 4-5. Based on your statements that the work of the EMS drivers is supervised by the EMS director, it appears that the work of ambulance drivers is controlled by the county and that they are employees rather than independent contractors.

You ask whether the commissioner is precluded from being compensated by the county as an EMS driver by the oath of office set forth in section 81.002 of the Local Government Code, which provides in pertinent part:

(a) Before undertaking the duties of the county judge or a county commissioner, a person must take the official oath and swear in writing that the person will not be interested, directly or indirectly, in a contract with or claim against the county except:

(1) a contract or claim expressly authorized by law; or

(2) a warrant issued to the judge or commissioner as a fee of office.

TEX. LOC. GOV'T CODE ANN. § 81.002 (Vernon 1988). Section 81.002 states a strict rule against conflicts of interest. It has been partially repealed by Local Government Code chapter 171, see infra, but prior to the partial repeal, it barred county commissioners from having any interest, no matter how small, in a contract with the county. See Tex. Att'y Gen. Op. No. H-624 (1975) (county barred from contracting with a farmers' cooperative in which one commissioner owned a share). This oath of office has been construed to extend to employment contracts and thus precludes a commissioners court from employing its own members. See Starr County v. Guerra, 297 S.W.2d 379, 380 (Tex. Civ. App.-San Antonio 1956, no writ).

Chapter 171 now permits a commissioners court to enter into a contract in which a commissioner is interested if the contract falls within the ambit of that chapter. As this office has explained:

chapter 171 and section 81.002 may be correctly harmonized by reading chapter 171 to authorize a county to enter into contracts or take actions in which a member of the commissioners court is pecuniarily interested to the same extent that other local governmental bodies may take such actions. Thus, if a county commissioner or county judge has a substantial interest in a business entity that will be subject to a vote or decision by the commissioners court, he must file the affidavit required by section 171.004 and abstain from participation in a matter if "action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public." Local Gov't Code § 171.004. If his interest in a business entity is less than a substantial interest, the interested member of the commissioners court may participate in an action affecting the business entity. Chapter 171 creates an exception in the oath required by section 81.002 to the extent that it permits a county judge or county commissioner to have a direct or indirect interest in a contract with or claim against the county.

Tex. Att'y Gen. Op. No. DM-279 (1993) at 4.

Again, the oath of office provision precludes a commissioners court from employing its own members because a county employee is "interested, directly or indirectly, in a contract with or claim against the county." TEX. LOC. GOV'T CODE ANN. § 81.002(a) (Vernon 1988); Starr County, 297 S.W.2d at 380. Based on the information you have provided, it appears that ambulance drivers, who are employed by the county and paid with county funds, have an interest in a contract or claim against the county.

We do not believe that chapter 171 repeals the oath of office provision in the circumstances you describe. Chapter 171 governs public officers interests in "real property," which is not relevant here, and "business entities." See TEX. LOC. GOV'T CODE ANN. § 171.004 (Vernon Supp. 1999) (requiring local public official to file affidavit and abstain from any vote affecting business entity or real property in which official has "a substantial interest"). Local Government Code section 171.001(2) defines the term "business entity" to mean "a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized by law." Id. (Vernon 1988). As this office has previously stated, the phrase "other entity recognized by law" in section 171.001(2) "should be read to refer to private entities organized in a form authorized or recognized by the legislature to carry out purposes similar to the purposes" of the listed entities. Tex. Att'y Gen. Op. No. JM-852 (1988) at 4. While this office has concluded that an attorney's law practice, a sole proprietorship, falls within this definition, see Tex. Att'y Gen. LO-94-055, at 4, it has never extended this definition to include a person who is not acting in the capacity of a business or as an independent contractor. The commissioner, in his capacity as ambulance driver for the county EMS department, is clearly not operating as a business entity, nor, you inform us, is he acting as an independent contractor. The county, like other political subdivisions, is not itself a business entity within the meaning of chapter 171. See Tex. Att'y Gen. Op. Nos. DM-267 (1993) (city not "business entity" within meaning of Local Government Code chapter 171), JM-852 (1988) (state university not "business entity" within meaning of Local Government Code chapter 171). Again, based on the information you have provided, it appears that an ambulance driver is a county employee. We do not believe that chapter 171 is intended to permit employment contracts between members of a governing body and the political subdivision they govern. [Footnote 1: But see 35 DAVID B. BROOKS, COUNTY AND SPECIAL DISTRICT LAW § 18.37 (Texas Practice 1989) (suggesting that definition of "business entity" includes "an individual selling property or contracting in his own name").]

In sum, section 81.002 precludes a county commissioner from having an employment relationship with the county. Chapter 171 does not repeal the oath of office provision with respect to employment relationships with the county. We are not aware of any other statutory provision that would repeal the section 81.002 in the circumstances at issue here. [Footnote 2: For a discussion of other enactments that repeal section 81.002 by implication, see Tex. Att'y Gen. Op. No. DM-279 (1993) at 6.] For this reason, we believe that the county commissioner's oath of office precludes the commissioner from receiving the payments you describe.

You also ask whether the commissioner can avoid the effect of section 81.002 by recusing himself from any vote affecting the county EMS department. He cannot. The section 81.002 oath of office incorporates the strict common-law prohibition against conflicts of interest. See Bexar County v. Wentworth, 378 S.W.2d 126 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.). Under the common law, a public officer cannot avoid a conflict of interest by recusing himself. Delta Elec. Constr. Co. v. City of San Antonio, 437 S.W.2d 602, 608-09 (Tex. Civ. App.-San Antonio 1969, writ ref'd n.r.e.). Given that the statutory oath of office incorporates the common law, we conclude that a public officer cannot avoid a conflict of interest under section 81.002 by recusing himself.

Given our conclusion that Local Government Code section 81.002 precludes the arrangement you describe, we need not address whether the arrangement violates the doctrine of common-law incompatibility prohibition against self-employment. Nor do we address whether workers' compensation coverage alone would create an interest in a contract or claim against the county in violation of section 81.002. See generally TEX. LAB. CODE ANN. § 504.012(a) (Vernon 1996) (authorizing political subdivision to provide workers' compensation for volunteer emergency medical personnel).

SUMMARY

Local Government Code section 81.002 precludes a county commissioner from receiving payments from the county for driving an ambulance for the county emergency medical services department.

Yours very truly,

JOHN CORNYN
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