Can a married couple both hold local elected office in Texas if their districts overlap?

Plain-English summary

A state representative asked the Attorney General about a married couple in which each spouse held a different local elected office, and the two offices' territories overlapped. One spouse was an elected director of a water conservation district, which funds itself with user fees on water pumped from wells inside the district; about 40 percent of that money came from wells located in a city whose boundaries partly overlap the district. The other spouse sat on that city's council and drew a salary. The representative asked whether a conflict of interest would disqualify either spouse from office.

The Attorney General's answer was no. Texas's local conflict-of-interest statute, chapter 171 of the Local Government Code, comes into play only when an official has a "substantial interest" in a "business entity" or in real property, and even then it does not strip the official of office; it requires the official to file an affidavit disclosing the interest and to abstain from the particular vote. The office concluded that a city is not a "business entity," so the council member's salary did not create a chapter 171 interest, and because there was no interest for the council member, none passed to the spouse through their marriage either. The office added that the conservation-district director could accept the meeting per diem, and that the Texas Constitution's bar on one person holding two paid civil offices did not reach a director who was a mere employee, not an officer, at a separate water district. On two points the office declined to go further without more facts: whether the two water-district roles were "incompatible" at common law, and what specific votes might create conflicts going forward.

Currency note

This opinion was issued in 1993. 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. Chapter 171 of the Local Government Code and the Water Code provisions discussed here may have been amended since 1993; confirm the current statutes before relying on anything described here.

What the opinion meant for those who asked

For the requesting representative and the couple: The opinion concluded that no statutory conflict of interest disqualified either spouse from holding office on the facts described. It emphasized that chapter 171 is a disclose-and-abstain regime, not a disqualification regime.

For the city council member: The opinion held that the salary the council member received did not amount to a substantial interest in a "business entity," because a city is not a business entity under chapter 171. So the salary did not trigger the statute's affidavit-and-abstention duties on that basis.

For the conservation-district director: The opinion said the director could accept the per diem for meetings, and that the dual-office-holding bar in article XVI, section 40 did not apply to a person who was a district director and also a mere employee (rather than an officer) of a conservation and reclamation district. The office left open, for lack of facts, whether the two roles were incompatible at common law.

Background and statutory framework

Each spouse was a "local public official" (a member of the governing body of a district, municipality, or other local governmental entity) under Local Government Code section 171.001(1), and therefore subject to chapter 171's conflict-of-interest rules. Under section 171.004, a local public official who has a substantial interest in a business entity or in real property must file an affidavit and abstain before a vote on a matter involving that interest. The office stressed that chapter 171 "provides for disclosure and abstention but does not disqualify local public officials from office."

Chapter 171 defines a "business entity" as "a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized by law" (section 171.001(2)), and provides that a person has a substantial interest if funds received from the business entity exceed 10 percent of the person's gross income for the previous year (section 171.002(a)(2)). An interest can pass to a spouse: section 171.002(c) gives a local public official a substantial interest if a person related within the first degree of consanguinity or affinity has one. So the question reduced to whether a city is a "business entity." Relying on Attorney General Opinion JM-852 (1988), which used the rule of ejusdem generis to hold that a state university is not a "business entity" because it is a public entity that does not exist to produce financial benefits for private persons, the office reasoned that a city, "[a] political entity or subdivision for local governmental purposes" (Black's Law Dictionary 244 (6th ed. 1990)), is likewise not a business entity.

On dual office holding, article XVI, section 40 of the Texas Constitution bars one person from holding "more than one civil office of emolument." That bar applies only if both positions are civil offices. Because the request gave no detail on the nature of the director's "employment" at the other district, the office took the position to be an employment, not an office, applying the test from Aldine Independent School District v. Standley: the decisive factor distinguishing a public officer from a public employee is whether a sovereign function of government is conferred on the individual to be exercised for the public benefit largely independent of others' control (quoting Dunbar v. Brazoria County). On that footing, section 40 did not bar the arrangement. The office also flagged the common-law doctrine of incompatibility (State ex rel. Brennan v. Martin), which can bar one person from holding two offices for different governmental entities, but said it could not apply the doctrine without knowing more about the director's second position.

Common questions

Can a married couple both hold local elected office in Texas when their districts overlap?
On the facts the representative gave, yes. The office found no conflict of interest under chapter 171 that would disqualify either spouse. It also noted that chapter 171 does not remove officials from office in any event; it requires disclosure and abstention on specific votes.

Is a city a "business entity" under the conflict-of-interest law?
No. Applying the rule of ejusdem generis, the office concluded a city is a political subdivision for governmental purposes, not a "business entity," so a city salary did not create a substantial interest under chapter 171.

Does a chapter 171 conflict cost an official the office?
No. The office was explicit that chapter 171 provides for disclosure and abstention, not disqualification. An official with a covered substantial interest files an affidavit and sits out the specific vote.

Could one spouse be both a water-district director and an employee of another water district?
The constitutional bar on holding two civil offices of emolument applies only to two offices. Because the second position appeared to be an employment rather than an office, the office concluded article XVI, section 40 did not bar it. Whether the two roles were "incompatible" at common law was left undecided for lack of facts.

Citations

Statutory and constitutional provisions discussed:

• Local Gov't Code § 171.001(1) (definition of "local public official") and § 171.001(2) (definition of "business entity")
• Local Gov't Code § 171.002(a)(2) (substantial interest: funds exceeding 10 percent of gross income) and § 171.002(c) (interest of a related person)
• Local Gov't Code § 171.004(a)(1)-(2), (b) (affidavit and abstention)
• Tex. Const. art. XVI, § 40 (prohibition on holding more than one civil office of emolument)
• Water Code chs. 50, 52 (enabling provisions for the conservation district)

Prior Attorney General opinions referenced: JM-852 (1988); JM-203 (1984); JM-1047 (1989).

Cases discussed:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• State ex rel. Brennan v. Martin, 51 S.W.2d 815, 817 (Tex. Civ. App.-San Antonio 1932, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0267
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0267.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

DAN MORALES
ATTORNEY GENERAL

October 25, 1993

Honorable Libby Linebarger
Chair
Public Education Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-267

Re: Whether conflicts of interest exist that would disqualify a spouse from serving in elected office when both spouses hold elected positions in local governmental bodies with overlapping jurisdictional boundaries and one jurisdiction is responsible for a portion of the annual budget of the other governmental body, and related questions (RQ-566)

Dear Representative Linebarger:

Your request for an opinion involves a married couple's possible conflicts of interest when each spouse holds elected office in a local governmental body whose jurisdictional boundary overlaps with that of the other body and one governmental body is responsible for a portion of the annual budget of the other body. You explain that one spouse is an elected director of a state conservation district ("CD") operating under its enabling legislation and chapters 50 and 52 of the Water Code. The CD derives its revenues from "user fees" on water pumped from wells in the CD. About 40 percent of the user-fee revenues come from wells that are located in a certain city ("the city") whose jurisdiction partially overlaps that of the CD. The directors of the CD do not receive a salary, but they are entitled to a per diem for meeting attendance, which per diem this spouse always has declined. The other spouse is a member of the city council of the city and receives an annual salary as a council member. You ask whether, under the foregoing facts, either spouse would be disqualified from office because of a conflict of interest.

Each spouse is a "[l]ocal public official," that is, "a member of the governing body . . . of any district . . . , municipality, . . . or other local governmental entity," Local Gov't Code § 171.001(1), and as such is subject to the rules regarding conflicts of interest codified in chapter 171 of the Local Government Code. Under chapter 171 "a local public official [who] has a substantial interest in a business entity or in real property" must in certain instances

file [with the official record keeper of the governmental entity], before a vote or decision on any matter involving the business entity or the real property, an affidavit stating the nature and extent of the interest and . . . abstain from further participation in the matter.

Id. § 171.004(a)(1)-(2), (b). Chapter 171 provides for disclosure and abstention but does not disqualify local public officials from office.

Your facts do not suggest that any real property interest is involved here, but you do mention that one spouse receives a salary as a city council member and that the other has declined the per diem for meetings of the CD. These facts suggest that we consider whether either spouse has a substantial interest in a business entity for purposes of chapter 171. In that chapter a "[b]usiness entity means a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized by law." Id. § 171.001(2). "[A] person has a substantial interest in a business entity if: . . . funds received by the person from the business entity exceed 10 percent of the person's gross income for the previous year." Id. § 171.002(a)(2). Therefore, the city council member spouse has a substantial interest in a business entity if the city is a business entity and if the money received from the city exceeds 10 percent of that spouse's income last year. Further, if the city council member has a substantial interest in a business entity by virtue of the salary from the city, then the other spouse also has a substantial interest in a business entity because of that person's marital relationship to the council member. See id. § 171.002(c) (local public official has substantial interest if person related to that official in first degree of consanguinity or affinity has substantial interest).

There is no precedent on whether a city is a business entity for purposes of chapter 171. In Attorney General Opinion JM-852 (1988) we concluded by application of the rule of ejusdem generis to the definition of "business entity" in section 171.001(2) that a state university is not included within that definition as "any other entity recognized by law" because it is a public entity and its purpose is not to produce financial benefits for private persons. Attorney General Opinion JM-852 at 3-4. The same rule of construction shows that a city is not a "business entity." A city is, rather, "[a] political entity or subdivision for local governmental purposes." Black's Law Dictionary 244 (6th ed. 1990). We conclude, therefore, that neither spouse has a substantial interest in a business entity under chapter 171 by virtue of one spouse's salary income from serving as a member of the city council. Nor do any of the other facts you have offered suggest any substantial interest in a business entity that would invoke the application of chapter 171.

You ask whether the spouse that is a director of the CD may accept the per diem. We see no reason under the facts you have given that the director spouse should not accept the per diem.

You also ask what restrictions apply if the spouse who is a director of the CD also is an employee of a conservation and reclamation district. Your question raises the issue of dual office holding. Article XVI, section 40 of the Texas Constitution prohibits the holding by one person of "more than one civil office of emolument." The constitutional prohibition against dual office holding thus generally would apply under these facts only if both the position at the conservation and reclamation district and the directorship of the CD are "civil offices of emolument." You do not present us any details concerning the nature of the CD director's "employment" at the conservation and reclamation district, so we accept as fact that the position at the conservation and reclamation district is an employment and not a "civil office." See Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (decisive factor distinguishing public officer from public employee is "whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others") (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd), with emphasis supplied by Aldine court). Under these circumstances, the prohibition of article XVI, section 40, against dual office holding does not apply to the spouse who is a director of the CD and an employee of a conservation and reclamation district.

Another potential bar to dual office holding is the common-law doctrine of incompatibility. See State ex rel. Brennan v. Martin, 51 S.W.2d 815, 817 (Tex. Civ. App.-San Antonio 1932, no writ) (statement of doctrine). In general, incompatibility may arise when one person serves as an officer for two different governmental entities, or when one person serves as an officer and employee for the same governmental entity. See Attorney General Opinion JM-203 (1984) at 7-11. But see Attorney General Opinion JM-1047 (1989) at 5-6 (incompatibility prevents one person from serving as justice of peace and as jailer in same county). Because we do not have any details concerning the nature of the CD director's employment at the conservation and reclamation district, we cannot determine whether the two positions are incompatible.

Finally, you ask what possible conflicts of interest there are regarding voting on issues germane to either governmental body by either official. We can answer this question only by referring you generally to chapter 171 of the Local Government Code and the case law and attorney general opinions construing it. We invite you to submit a new request if you have a particular issue you wish us to consider in this regard.

SUMMARY

A city is not a "business entity" for purposes of chapter 171 of the Local Government Code. The prohibition of article XVI, section 40 of the Texas Constitution against dual office holding does not apply to a person who is both a director of a state conservation district and a mere employee of a conservation and reclamation district.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General