Can a Texas county commissioner also work as the general manager of a water authority?
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This page answers the general question as of 2022. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Plain-English summary
The Nueces County Attorney described a situation where a county commissioner also functions as the general manager of the South Texas Water Authority. The Authority is a conservation and reclamation district governed by its enabling legislation and chapter 49 of the Water Code, and the commissioners courts of Kleberg and Nueces counties appoint its directors. The general-manager role runs through a corporation: the commissioner is president of a corporation that signed a management service agreement with the Authority, and under that agreement the corporation's president serves as the Authority's general manager. The County Attorney asked whether the common-law doctrine of incompatibility or conflict-of-interest laws prohibit one person from holding both roles. The AG took the facts as presented (a brief disputed whether the commissioner is actually the general manager, but the AG does not resolve fact disputes).
On incompatibility, the AG worked through the three branches the Texas courts recognize (Ehlinger v. Clark). Self-appointment incompatibility stops an officer from being appointed to a post the officer controls; self-employment incompatibility stops one person from holding an office and an employment that the office supervises. Neither applies here, because the Authority's board, not the county commissioner or the commissioners court, appoints, employs, and supervises the general manager (Special District Code section 11006.151(13); Water Code section 49.056(a)). The conflicting-loyalties branch bars holding two positions that would keep a person from exercising independent judgment in either, but it applies only when both positions are public offices. The AG had previously concluded that a water district's general manager does not hold a public office (GA-0849 (2011); City of Groves v. Ponder), so that branch does not apply either. The AG also noted the Texas Constitution's limit on holding more than one civil office of emolument (article XVI, section 40(a)) expressly excludes county commissioners. So a court would likely find the incompatibility doctrine does not bar the dual service. Because no branch applied, the AG did not reach the automatic-resignation question.
On conflicts of interest, the AG addressed Local Government Code section 81.002 and chapter 171. Section 81.002(a) makes a county commissioner swear not to be interested, directly or indirectly, in a contract with or claim against the county. By its terms it does not reach this management service agreement, which is between the Authority and the corporation, not a contract with or claim against the county. Chapter 171 requires a local public official with a substantial interest in a business entity to file an affidavit and abstain when the governmental body acts on a matter with a special economic effect on that business. A county commissioner is a local public official, but chapter 171 is triggered only when the official participates in the vote or decision. Here the Authority's board, not the individual acting as commissioner or general manager, voted to approve and ratify the management service agreement. So a court would likely conclude the Authority's vote did not require the individual to follow chapter 171's affidavit-and-abstention procedure (comparing KP-0376, KP-0244, and DM-0244). Any common-law conflict-of-interest principles are preempted by chapter 171 (section 171.007(a); Water Code section 49.214). The AG limited the analysis to the management service agreement, not other agreements the Authority might enter.
What this means for you
If you are a county commissioner or hold dual local roles
Based on this opinion and the facts presented, serving as a county commissioner and as the general manager of a water authority is not, by itself, barred by the incompatibility doctrine, because the water district's board (not the county) hires and supervises the general manager and the general-manager post is not a public office. The constitutional dual-office limit also excludes county commissioners. The conclusion is fact-specific and limited to the arrangement described.
If you sit on a water district or special district board
The opinion treats the board's authority to appoint, employ, and supervise the general manager (Special District Code section 11006.151(13); Water Code section 49.056(a)) as the reason the self-appointment and self-employment branches do not apply. It also confirms that chapter 171 applies to the board member who votes on a contract, not to a person who does not participate in that vote.
If you advise local officials on conflicts of interest
The AG read section 81.002 as limited to contracts with or claims against the county, so an agreement between a separate water authority and a private corporation falls outside it. And chapter 171's affidavit-and-abstention duty attaches to the official who participates in the governing body's vote or decision; here that was the Authority's board, not the individual. Chapter 171 preempts common-law conflict-of-interest rules for local public officials.
Common questions
Q: Does the incompatibility doctrine stop a county commissioner from also being a water authority's general manager?
A: On these facts, no. The AG found none of the doctrine's three branches (self-appointment, self-employment, conflicting loyalties) applied, mainly because the Authority's board hires and supervises the general manager and that role is not a public office.
Q: Why doesn't the conflicting-loyalties rule apply?
A: That branch applies only when both positions are public offices. The AG had previously held a water district's general manager does not hold a public office, so the rule does not reach this pairing.
Q: Is the management service agreement a prohibited conflict of interest for the commissioner?
A: The AG concluded it is not under section 81.002 (it is not a contract with or claim against the county) or chapter 171 (the commissioner did not cast the Authority board's vote to approve it).
Q: Does the constitutional ban on holding two offices apply?
A: No. Article XVI, section 40(a) expressly excludes a county commissioner from the prohibition on simultaneously holding more than one civil office of emolument.
Q: Is this opinion a blanket green light?
A: No. It is limited to the facts presented and to this particular management service agreement, not other agreements the Authority might enter, and the AG noted it does not resolve the factual dispute about whether the commissioner actually serves as general manager.
Background and statutory framework
The common-law incompatibility doctrine bars dual public service in three situations: self-appointment, self-employment, and conflicting loyalties (Ehlinger v. Clark). Self-appointment incompatibility precludes an officer from being appointed to a position the officer has authority to fill; self-employment incompatibility prohibits holding an office and an employment that the office supervises (KP-0265). Conflicting-loyalties incompatibility bars simultaneously holding two positions that would prevent independent and disinterested judgment in either, and applies only when both are public offices (Thomas v. Abernathy Cnty. Line Indep. Sch. Dist.; KP-0369). Because the South Texas Water Authority's board appoints and employs its general manager (Special District Code section 11006.151(13); Water Code section 49.056(a)), and because a water district's general manager is not a public office (GA-0849; City of Groves v. Ponder), the AG concluded none of the branches bar the dual service. The constitutional limit on multiple civil offices of emolument excludes county commissioners (article XVI, section 40(a)).
On conflicts of interest, Local Government Code section 81.002(a) makes a county commissioner swear not to be interested, directly or indirectly, in a contract with or claim against the county, which does not reach an agreement between the Authority and a corporation. Chapter 171 requires a local public official with a substantial interest in a business entity to file an affidavit and abstain when the official participates in a vote or decision having a special economic effect on the business (section 171.004(a)(1); KP-0244). A county commissioner is a local public official (section 171.001), and a person performing general-manager duties under a management agreement can be one too (Integ Corp. v. Hidalgo Cnty. Drainage Dist. No. 1). But here the Authority's board, not the individual, approved and ratified the management service agreement, so chapter 171's procedures were not triggered (comparing KP-0376, KP-0244, and DM-0244). Chapter 171 preempts common-law conflict-of-interest rules for local public officials (section 171.007(a)), and applies to district contracts (Water Code section 49.214).
Citations and references
Constitution and statutes:
- Tex. Const. art. XVI, § 40(a) (county commissioner excluded from the multiple-office bar)
- Tex. Water Code § 49.056 (district board may employ or contract for a general manager) and § 49.214 (chapter 171 applies to district contracts)
- Tex. Loc. Gov't Code § 171.004 (affidavit and abstention) and § 171.007 (chapter 171 preempts common-law conflict of interest)
- Tex. Loc. Gov't Code § 81.002 (county commissioner's oath against interest in a county contract)
Key cases:
- Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928) (the three branches of incompatibility)
- Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted) (conflicting-loyalties incompatibility)
- City of Groves v. Ponder, 303 S.W.2d 485 (Tex. App.—Beaumont 1957, writ ref'd n.r.e.) (a water district general manager is not a public officer)
- Integ Corp. v. Hidalgo Cnty. Drainage Dist. No. 1, 2019 WL 6205474 (Tex. App.—Corpus Christi Nov. 21, 2019, no pet.) (mem. op.) (general manager under a management agreement can be a local public official)
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0407
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0407.pdf
Original opinion text
KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 6, 2022
The Honorable Jenny P. Dorsey
Nueces County Attorney
901 Leopard Street, Room 207
Corpus Christi, Texas 78401-3689
Opinion No. KP-0407
Re: Whether the doctrine of incompatibility or conflict-of-interest laws prevent simultaneous service as a county commissioner and general manager of a water authority (RQ-0433-KP)
Dear Ms. Dorsey:
You ask several questions about a county commissioner simultaneously serving as the general manager of the South Texas Water Authority ("Authority").1 You explain that the Authority is a conservation and reclamation district governed by its enabling legislation and chapter 49 of the Water Code. See Request Letter at 1-2. You tell us the commissioners courts of Kleberg and Nueces counties appoint directors of the Authority. See id. at 2. You inform us that the Authority executed a management service agreement with a corporation. See id. at 3. You further explain that a county commissioner of Nueces County is the president of the corporation and, under the management service agreement, serves as the general manager of the Authority.2 See id. at 3-4, 6-7. Your questions generally relate to the doctrine of incompatibility and conflicts of interest, and we address related questions together.
1 See Letter from Honorable Jenny P. Dorsey, Nueces Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 1, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0433KP.pdf ("Request Letter").
2 A brief submitted in response to your request asserts the county commissioner is the president of the corporation, but not the general manager of the Authority. See Brief from John D. Bell, Wood, Boykin & Wolter, P.C., to Op. Comm. at 1 (Nov. 3, 2021) (on file with the Op. Comm.). This office does not resolve disputed issues of fact. See, e.g., Tex. Att'y Gen. Op. No. KP-0205 (2018) at 1. Therefore, this opinion is limited to the facts as you present them.
Incompatibility Doctrine
Your first set of questions concern whether the common-law doctrine of incompatibility prohibits a person from simultaneously serving as a county commissioner of Nueces County and a general manager of the Authority.3 See id. at 1, 4-7. The incompatibility doctrine prohibits dual public service in cases of self-appointment, self-employment, and conflicting loyalties. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Self-appointment incompatibility precludes an officer from being appointed to a position over which the officer has appointment authority. See id. Self-employment incompatibility prohibits one person from holding an office and an employment that the office supervises. See id.; Tex. Att'y Gen. Op. No. KP-0265 (2019) at 2. Conflicting-loyalties incompatibility prohibits a person "from simultaneously holding two positions that would prevent him or her from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. KP-0265 (2019) at 2; see also Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (holding incompatible the positions of school trustee and municipal alderman).
Self-appointment and self-employment incompatibility do not prevent the dual service at issue. The Authority's board, not the county commissioner or commissioners court, appoints or employs the Authority's general manager. See TEX. SPEC. DIST. CODE § 11006.151(13) (providing that the Authority has power to "appoint and determine the duties, tenure, qualifications, and compensation of officers, employees, agents, professional advisors, and counselors . . . considered necessary or advisable by the board"); TEX. WATER CODE § 49.056(a) (providing a district board may employ or contract with a person to serve as general manager); Request Letter at 3-4 (describing the process used to enter the management service agreement and the terms of the agreement).
Conflicting-loyalties incompatibility applies only when both positions are public offices. See Tex. Att'y Gen. Op. No. KP-0369 (2021) at 3. This office previously concluded the general manager of a water district does not occupy a public office. See Tex. Att'y Gen. Op. No. GA-0849 (2011) at 2; cf. also, City of Groves v. Ponder, 303 S.W.2d 485, 488 (Tex. App.—Beaumont 1957, writ ref'd n.r.e.) (concluding the general manager of a water control and improvement district was not a public officer). Accordingly, the conflicting-loyalties incompatibility doctrine does not prohibit a county commissioner from also serving as the general manager of the Authority.4 In sum, a court would likely conclude the common-law doctrine of incompatibility does not prohibit a person from simultaneously serving as a county commissioner of Nueces County and a general manager of the Authority.
3 You also mention the state constitutional limitation on dual-officeholding. See Request Letter at 4. By its express terms, the constitutional limitation is inapplicable. See TEX. CONST. art. XVI, § 40(a) (excluding a county commissioner from the prohibition against an individual simultaneously holding "more than one civil office of emolument").
4 Because we conclude no aspect of the incompatibility doctrine applies, we need not address your question regarding automatic resignation. See Request Letter at 1, 6-7.
Conflict of Interest
Your next set of questions concern whether the management service agreement between the Authority and the corporation constitutes a conflict of interest under section 81.002 of the Local Government Code, chapter 171 of the Local Government Code, or common law.5 See Request Letter at 1, 7. Section 81.002(a) requires a county commissioner to take an "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." TEX. LOC. GOV'T CODE § 81.002(a). Without addressing the interplay between this section and chapter 171, by its terms, section 81.002 is inapplicable because the management service agreement between the Authority and the corporation is not a "contract with or claim against the county." Id.
As relevant to your questions, chapter 171 prohibits a "local public official" from participating in a vote or decision involving a "business entity" in which the official has a substantial interest:
(a) If a local public official has a substantial interest in a business entity . . . , the official shall file, before a vote or decision on any matter involving the business entity . . . , an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter if:
(1) in the case of a substantial interest in a business entity the action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public; . . . .
Id. § 171.004(a)(1). This office has determined the prohibition "'applies only to a local public official who may participate in a vote or decision of the governmental entity that will result in a special economic effect' on the official's business." See Tex. Att'y Gen. Op. No. KP-0244 (2019) at 2.
While the individual at issue is a local public official,6 neither state statute nor the facts you describe provide that the individual, as county commissioner or general manager, participates in the vote or decision of the Authority to approve the management service agreement—that is the responsibility of the Authority's board. See TEX. SPEC. DIST. CODE § 11006.151 (providing that the Authority has power to "appoint and determine the duties, tenure, qualifications, and compensation of officers, employees, agents, professional advisors, and counselors . . . considered necessary or advisable by the board"); TEX. WATER CODE § 49.056(a) (providing a district board may employ or contract with a person to serve as general manager); Request Letter at 3, nn.22 & 26 (explaining the Authority's board ratified and confirmed the board president's approval and execution of the management service agreement with the corporation). Thus, a court would likely conclude that the Authority's vote to approve the management service agreement with the corporation does not constitute a vote or decision requiring the individual, as county commissioner or general manager, to comply with the conflict-of-interest procedures under subsection 171.004(a). Cf. Tex. Att'y Gen. Op. Nos. KP-0376 (2021) at 5 (concluding that because a county attorney did not vote or decide whether to award a contract, the county attorney did not have to comply with the conflict-of-interest procedures under subsection 171.004), KP-0244 (2019) at 4 (concluding that because a city attorney and a city administrator did not possess authority to vote or make a decision on a proposed agreement, they were not subject to section 171.004), DM-0244 (1993) at 3 (concluding there is no conflict of interest where a person serves simultaneously as a county commissioner and manager of a corporation with which a community center created by that county has entered into a contract).7
5 Our analysis and conclusions apply only to the management service agreement, not other agreements the Authority may enter.
6 A county commissioner is a local public official subject to chapter 171. See TEX. LOC. GOV'T CODE § 171.001 (defining "local public official" to include a member of the governing body of a county). The Thirteenth Court of Appeals concluded that an individual who performed the duties of general manager of a drainage district under a management consulting agreement was a local public official subject to chapter 171. See Integ Corp. v. Hidalgo Cnty. Drainage Dist. No. 1, No. 13-18-00123-CV, 2019 WL 6205474 at *8-9 (Tex. App.—Corpus Christi Nov. 21, 2019, no pet.) (mem. op.).
7 Any common-law conflicts-of-interest principles that might apply to the vote to approve the management service agreement are preempted by chapter 171. See TEX. LOC. GOV'T CODE § 171.007(a) ("This chapter preempts the common law of conflict of interests as applied to local public officials."); see also TEX. WATER CODE § 49.214 ("The provisions of Chapter 171, Local Government Code, shall apply to the award of district contracts.").
S U M M A R Y
A court would likely conclude that the common-law incompatibility doctrine does not bar a Nueces County commissioner from simultaneously serving as the general manager of the South Texas Water Authority.
A court would likely conclude that the management service agreement between the South Texas Water Authority and a corporation for which a Nueces County commissioner serves as president does not constitute a conflict of interest under section 81.002 or chapter 171 of the Local Government Code.
Very truly yours,
KEN PAXTON
Attorney General of Texas
BRENT E. WEBSTER
First Assistant Attorney General
LESLEY FRENCH
Chief of Staff
MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee
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