Can a Texas county commissioner also be paid as an employee of the county sheriff's department?

TX AG Opinion GA-0645: Can a county commissioner be paid to work in the sheriff's jail?

Plain-English summary

The Grimes County Auditor reported that a county commissioner had been drawing a salary from the jail division of the sheriff's department on top of her commissioner's pay, in fact on one county check, and asked whether she could be paid for that jail work. The opinion concluded she could not.

The key statute is Local Government Code section 81.002(a). Before taking office, a county commissioner must swear in writing that the person 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 fee-of-office warrant. A 1999 opinion (JC-0061) had construed that oath as a strict rule against conflicts of interest that bars a commissioner from being employed by the county, because a compensated county employee is interested in a claim against the county. The opinion applied that reasoning here.

A worker in the sheriff's department, including a jailer, is a county employee paid with county funds. By taking compensated jail work, the commissioner became interested in a claim against the county, and the arrangement did not fall within either statutory exception. The opinion distinguished an earlier opinion (GA-0360) that let a county auditor work for an emergency services district, because such a district is a separate political subdivision, not the county; the sheriff's department is the county. It also addressed a letter opinion (LO-97-081) the county attorney had relied on: that opinion found no bar under constitutional dual-office-holding or common-law incompatibility to a commissioner serving as a reserve deputy, but it never considered section 81.002(a), so it did not authorize paid county employment. The opinion acknowledged an anomaly, that chapter 171 lets a commissioner benefit from certain county contracts if disclosure and abstention rules are met while section 81.002 flatly bars an employment relationship, but said that mismatch is a policy question for the Legislature, not the Attorney General.

Currency note

This opinion was issued in 2008. 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.

Local Government Code sections 81.002 and 171.004 may have been amended since 2008. Confirm current law before relying on this analysis.

Who this opinion affected (as of 2008)

County commissioners: The opinion concluded that section 81.002(a) barred a commissioner from holding paid employment with the county, including in the sheriff's jail division, absent a statutory exception.

County auditors and commissioners courts: The opinion gave them authority to refuse payment of a commissioner's salary for county employment, and it distinguished work for a genuinely separate political subdivision (like an emergency services district), which is not county employment.

Sheriffs: The opinion treated jail-division workers and deputies as county employees paid with county funds, so a sheriff could not put a sitting commissioner on the department payroll.

Common questions

Why can't a commissioner be paid for jail work?
Because section 81.002(a) requires a commissioner to swear not to be interested in a contract with or claim against the county, and a paid county employee is interested in such a claim. The opinion read that as barring a commissioner from also being a county employee.

Is a jail worker really a "county employee"?
Yes. The opinion treated employees of the sheriff's department, including jailers, as county employees paid with county funds.

Didn't another opinion let an auditor work a second government job?
That opinion (GA-0360) involved an emergency services district, which is a separate political subdivision, not the county. The opinion distinguished it because the sheriff's department is part of the county.

What about the letter opinion the county attorney relied on?
That letter opinion addressed only constitutional dual-office-holding and common-law incompatibility, not section 81.002(a). Because it never considered the oath statute, it did not authorize paid county employment.

Background and statutory framework

Local Government Code section 81.002(a) requires a county commissioner, before undertaking the duties of office, to swear not to be interested, directly or indirectly, in a contract with or claim against the county, except a contract or claim expressly authorized by law or a fee-of-office warrant (Tex. Loc. Gov't Code Ann. § 81.002(a) (Vernon 2008)). A prior opinion read that oath as a strict conflicts rule barring a commissioner from county employment, even though chapter 171 repealed section 81.002 as to business-entity and real-property interests and instead requires disclosure and abstention (id. § 171.004(a) (Vernon 2008); Starr County v. Guerra, 297 S.W.2d 379, 380 (Tex. Civ. App.-San Antonio 1956, no writ)). A sheriff may employ jail guards and other personnel with commissioners court approval, and such workers are county employees paid with county funds (id. §§ 85.005(a), 151.001(a), .002, .003, 152.001 (Vernon 2008)). An employee of a genuinely separate political subdivision, such as an emergency services district created under article III, section 48-e and Health and Safety Code chapter 775, is not a county employee (Tex. Const. art. III, § 48-e; Tex. Health & Safety Code Ann. §§ 775.031(a), (a)(5), 775.034(a)-(b) (Vernon Supp. 2007)). The constitutional dual-office-holding bar reaches only civil offices of emolument and does not resolve the section 81.002(a) employment question (Tex. Const. art. XVI, § 40).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 81.002(a), 171.004(a), 85.005(a), 151.001(a), .002, .003, 152.001 (Vernon 2008)
• Tex. Const. art. XVI, § 40; art. III, § 48-e
• Tex. Health & Safety Code Ann. §§ 775.031(a), (a)(5), 775.034(a)-(b) (Vernon Supp. 2007)

Cases:

• Starr County v. Guerra, 297 S.W.2d 379, 380 (Tex. Civ. App.-San Antonio 1956, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0645
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0645.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 14, 2008

Mr. Sidney "Buck" LaQuey
Grimes County Auditor
Post Office Box 510
Anderson, Texas 77830

Opinion No. GA-0645

Re: Whether a county commissioner may be paid while working for the county sheriff in the jail division (RQ-0661-GA)

Dear Mr. LaQuey:

You state that a Grimes County Commissioner "has been working and received a salary paid by the jail division of the sheriff's department in addition to receiving the salary as" county commissioner.[1] You ask whether the commissioner may be paid for her work in the jail division. Request Letter, supra note 1, at 1. You believe Attorney General Opinion JC-0061, which construes Local Government Code section 81.002 to prohibit a county commissioner from being employed by the county, suggests that the answer is "no." See id.; see also TEX. LOC. GOV'T CODE ANN. § 81.002(a) (Vernon 2008); Tex. Att'y Gen. Op. No. JC-0061 (1999).

Local Government Code section 81.002(a) requires a county commissioner, "[b]efore undertaking the duties of" the office, to

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(a) (Vernon 2008) (emphasis added).

As Opinion JC-0061 notes, "[s]ection 81.002 states a strict rule against conflicts of interest." Tex. Att'y Gen. Op. No. JC-0061 (1999) at 2. While Local Government Code chapter 171 has repealed section 81.002 with respect to a county commissioner's interest in business entities and real property, Opinion JC-0061 concludes that section 81.002 remains viable with respect to a county commissioner's employment relationship with the county. See id. at 3; see also TEX. LOC. GOV'T CODE ANN. § 171.004(a) (Vernon 2008) (generally requiring a local public official with a substantial interest in a business entity or real property, before a vote on a matter involving the business entity or real property, to disclose the interest and abstain from voting).

Section 81.002 precludes a county commissioner from simultaneously being employed by the county because a compensated county employee is "interested, directly or indirectly, in a contract with or claim against the county." Tex. Att'y Gen. Op. No. JC-0061 (1999) at 3 (quoting TEX. LOC. GOV'T CODE ANN. § 81.002(a) (Vernon 1988)); see also Starr County v. Guerra, 297 S.W.2d 379, 380 (Tex. Civ. App.-San Antonio 1956, no writ) (indicating that the oath provision precludes a county commissioners court from employing a commissioner). Because an ambulance driver in the county at issue in JC-0061 was a county employee and paid with county funds, the opinion determines that the county may not pay a county commissioner for employment as an ambulance driver. See Tex. Att'y Gen. Op. No. JC-0061 (1999) at 3-4.

In the situation you describe, the county commissioner is compensated for work performed in the jail division of the sheriff's office, and the commissioner thus has entered an employment relationship with the county. See Request Letter, supra note 1, at 1. An employee of a county sheriff's department is a county employee paid with county funds. Cf. Tex. Att'y Gen. Op. No. GA-0465 (2006) at 3 (stating that many counties employ one person to serve as both jailer and deputy sheriff); Tex. Att'y Gen. Op. No. GA-0322 (2005) at 3 n.5 (stating that a sheriff's deputies "are county employees paid by county funds"); Tex. Att'y Gen. Op. No. S-96 (1953) at 3 (concluding that a deputy sheriff is a county employee for purposes of the Workmen's Compensation Act); Tex. Att'y Gen. LO-93-62, at 2 (stating that both deputy sheriffs and county jailers "perform their duties on behalf of the sheriff").[2] Indeed, you tell us that the county is paying the commissioner for services as commissioner and with the sheriff's department "on one check from the county." Request Letter, supra note 1, at 1.

By becoming a compensated county employee, the commissioner has become interested in a contract with or claim against the county for purposes of Local Government Code section 81.002(a). See TEX. LOC. GOV'T CODE ANN. § 81.002(a) (Vernon 2008); Tex. Att'y Gen. Op. No. JC-0061 (1999) at 3. Consequently, under section 81.002(a) a county commissioner may not be employed with the county sheriff's department unless the commissioner's contract or claim is within either of the exceptions to section 81.002(a). See TEX. LOC. GOV'T CODE ANN. § 81.002(a) (Vernon 2008); Tex. Att'y Gen. Op. No. JC-0061 (1999) at 3. You do not suggest that the contract or claim at issue here is within either of the exceptions to section 81.002(a), and we do not find that it is.

Because an employee of the sheriff's department is a county employee, the situation about which you ask is distinguishable from that addressed in Attorney General Opinion GA-0360. See Tex. Att'y Gen. Op. No. GA-0360 (2005) at 1. That opinion considers whether the San Jacinto County Auditor may work as an accountant for the San Jacinto County Emergency Services District. See id. An emergency district, created under article III, section 48-e and Health and Safety Code chapter 775, is a special district and "a political subdivision of the state." TEX. CONST. art. III, § 48-e; TEX. HEALTH & SAFETY CODE ANN. § 775.031(a) (Vernon Supp. 2007); see also Tex. Att'y Gen. Op. No. GA-0360 (2005) at 2-3. A single-county emergency services district is governed by a board of commissioners that, although the members are appointed by the county commissioners, operates independently of the commissioners court. See Tex. Att'y Gen. Op. No. GA-0360 (2005) at 2; see also TEX. HEALTH & SAFETY CODE ANN. § 775.034(a)-(b) (Vernon Supp. 2007) (stating that board members are appointed to serve two-year terms). And an emergency services district may impose and collect taxes. See TEX. HEALTH & SAFETY CODE ANN. § 775.031(a)(5) (Vernon Supp. 2007); see also Tex. Att'y Gen. Op. No. GA-0360 (2005) at 3. The San Jacinto County Emergency Services District is, consequently, separate from the county such that an employee of the emergency services district would not be an employee of the county.

You indicate that, in reliance on Letter Opinion 97-081, the county attorney implicitly has approved the county commissioner's employment with the sheriff's department.[3] Letter Opinion 97-081 addresses only the constitutional prohibition of dual office holding and the common-law doctrine of incompatibility and concludes that neither prohibits a county commissioner from serving as a reserve deputy sheriff. See Tex. Att'y Gen. LO-97-081, at 1; see also TEX. CONST. art. XVI, § 40 (prohibiting the simultaneous holding by one person of "more than one civil office of emolument"); Tex. Att'y Gen. Op. No. GA-0569 (2007) at 1-2 (summarizing the doctrine of incompatibility). Letter Opinion 97-081 does not consider the applicability of Local Government Code section 81.002(a), as Opinion JC-0061 does. See Tex. Att'y Gen. LO-97-081, at 1-2; cf. Tex. Att'y Gen. Op. No. JC-0061 (1999) at 2-3. While Letter Opinion 97-081 correctly determines that simultaneously holding positions as a county commissioner and a sheriff's deputy does not implicate the constitutional dual office holding prohibition or the common-law doctrine of incompatibility, Local Government Code section 81.002(a) forbids a county commissioner from becoming a compensated county employee. See TEX. LOC. GOV'T CODE ANN. § 81.002(a) (Vernon 2008); Tex. Att'y Gen. Op. No. JC-0061 (1999) at 3; Tex. Att'y Gen. LO-97-081, at 1.

In conclusion, the commissioner about whom you ask may not be paid for working in the sheriff's jail division. As this office stated in Opinion JC-0061, because section 81.002 precludes this employment relationship, "we need not address whether the arrangement violates the doctrine of common-law incompatibility ...." Tex. Att'y Gen. Op. No. JC-0061 (1999) at 4. And we recognize that this construction of section 81.002 vis-a-vis Local Government Code section 171.004(a) creates an anomaly in that, under section 171.004(a), a county commissioner may benefit from a contract with the county that involves a business entity or real property in which the commissioner has a substantial interest so long as the commissioner complies with chapter 171's requirements, yet section 81.002 prohibits the commissioner from entering an employment relationship with the county. But this is a policy matter for the Legislature, and not this office, to consider. Cf. Tex. Att'y Gen. Op. No. GA-0630 (2008) at 4 (suggesting that policy concerns are for the Legislature to address).

Footnotes

[1] Letter from Sidney "Buck" LaQuey, Grimes County Auditor, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Dec. 31, 2007) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].

[2] See also TEX. LOC. GOV'T CODE ANN. § 85.005(a) (Vernon 2008) (authorizing a sheriff, "with the approval of the commissioners court," to employ guards "to ensure the safekeeping of prisoners" and jail security); id. §§ 151.001(a), .002, .003 (providing generally that a county officer may appoint positions after the commissioners court has approved the positions); id. § 152.001 (authorizing the county commissioners court to set a county employee's compensation, salary, and expenses). See generally Tex. Att'y Gen. Op. No. O-2444 (1940) at 3-4 (describing the process by which a sheriff may appoint an employee with the commissioners court's approval).

[3] See Letter from Sidney "Buck" LaQuey, Grimes County Auditor, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Jan. 7, 2008) (on file with the Opinion Committee).

SUMMARY

Local Government Code section 81.002(a) precludes a county commissioner from being paid for employment in the county sheriff's department.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee