Texas Attorney General Opinion: LO94-046 Page: 3 of 6
This text is part of the collection entitled: Texas Attorney General Opinions and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
Honorable David W. Wallace - Page 3 (L0-94-046)
Attorney General Opinion JM-1266 (1990) at 2. An elected official holds a civil office for
purposes of article XVI, section 40. Attorney General Opinion JM-1266 (1990) at 2; see
Tex. Const. art. V, 15 (providing that county judge shall be elected in each county).
Additionally, the office of county judge is an office "of emolument." See Attorney General
Opinion JM-594 (1986) at 2. Thus, a county judge holds a civil office of emolument for
purposes of article XVI, section 40.
On the other hand, we do not believe that the EMS administrator exercises a
sovereign function of the government largely independent of the control of others. You
do not cite, and we are unaware of, a statute detailing the powers and authority that can
be attributed to the. Sutton County EMS administrator. In our opinion, therefore, the
administrator may exercise only those powers that the commissioners court properly has
delegated to him or her. Moreover, the county commissioners court does not, by
delegating the administration of the EMS, "abdicate its statutory authority or control." Cf.
Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 660 (Tex. Civ.
App.-Eastland 1981, no writ). The county commissioners court retains supervisory
authority over all decisions the EMS administrator makes. Because the position of EMS
administrator is not an office for purposes of article XVI, section 40 of the Texas
Constitution, the prohibition against dual officeholding does not preclude the Sutton
County Judge from simultaneously serving as administrator of the Sutton County EMS.
The common-law doctrine of incompatibility has multiple facets. First, the
common-law doctrine of incompatibility disqualifies all officers who have the appointing
power from appointing themselves to a different position. Elinger v. Clark, 8 S.W.2d
666, 673-74 (Tex. 1928); St. Louis Southwestern Ry. Co. of Texas v. Naples Indep. Sch.
Dit., 30 S.W.2d 703, 706 (Tex. Civ. App.-Texarkana 1930, no writ); Attorney General
Opinions JM-934 (1988) at 3; C-452 (1965) at 3; 0-410 (1939) at 5-9. As the Texas
Supreme Court has stated:
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.
Ehlinger, 8 S.W.2d at 674. Thus, unless a specific statute provides otherwise, a public
governing body must not appoint one of its members to an office or position while that
person remains a member of the governing body. Attorney General Opinion C-452 at 3;
see Attorney General Opinion JM-1157 (1990) at 3. Any appointment that contravenes
this common-law principle is void as a matter of law. Ehlinger, 8 S.W.2d at 673-74; St.
Louis Southwestern Ry. Co. of Texas, 30 S.W.2d at 706; Attorney General Opinion C-452
at 4. See generally Letter Opinion No. 92-8 (1992).
Upcoming Pages
Here’s what’s next.
Search Inside
This text can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Text.
Texas. Attorney-General's Office. Texas Attorney General Opinion: LO94-046, text, May 19, 1994; (https://texashistory.unt.edu/ark:/67531/metapth276435/m1/3/?rotate=270: accessed April 30, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.