Can a Texas state representative also work as an assistant county attorney?

Plain-English summary

The Harris County Attorney asked whether a member of the Texas House of Representatives could at the same time be employed as an assistant county attorney. The Attorney General concluded that he could not.

The analysis turned on the last sentence of article XVI, section 40 of the Texas Constitution, which says no member of the Legislature may hold any other office or position of profit under the State (or the United States), except as a notary public if qualified by law. The opinion broke that into two questions. First, is an assistant county attorney an "officer"? The opinion said no: both the courts and the Attorney General had consistently treated an assistant district attorney, and by extension an assistant county attorney, as an "employee" rather than an officer. So holding an "office" was not the problem.

The second question was whether the job is nonetheless a "position of profit under this State." Here the opinion said yes. A "position of profit" had been described as salaried, nontemporary employment, and a compensated assistant county attorney, paid from county funds, holds such a position under the State. The opinion noted two earlier letter opinions where a legislator working as an "independent contractor" for a school district or a county on a part-time basis did not run afoul of section 40, but stressed that those turned on factual questions about contractor status. An assistant county attorney, by contrast, is hired as an employee under Government Code section 41.102, so the contractor escape hatch did not apply. The conclusion: a state representative may not be employed as an assistant county attorney.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Harris County Attorney and other prosecuting offices (what the opinion held): The opinion concluded a sitting member of the Legislature could not be hired as an assistant county attorney, because that role is a salaried position of profit under the State and the constitutional bar in article XVI, section 40 applies.

Legislators considering county or school work (what the opinion held for them): The opinion distinguished employee positions from bona fide independent-contractor arrangements. It noted earlier opinions that allowed a legislator to act as a part-time independent contractor for a school district or county, but cautioned that whether someone truly qualifies as an independent contractor is a fact question outside the opinion process.

Common questions

Can a Texas legislator hold a second government job?
The opinion explained that article XVI, section 40 of the Texas Constitution bars a member of the Legislature from holding any other office or position of profit under the State, with a narrow exception for serving as a notary public.

Is an assistant county attorney considered an "officer"?
No. The opinion followed consistent court and Attorney General authority treating assistant prosecutors as employees, not officers.

If it is not an office, why is it still barred?
Because article XVI, section 40 also bars a "position of profit," and the opinion concluded a salaried, nontemporary assistant county attorney paid from county funds holds a position of profit under the State.

Could a legislator instead contract with a county part-time?
The opinion pointed to earlier letter opinions allowing a legislator to serve as a part-time independent contractor for a school district or county, but said whether a person genuinely qualifies as an independent contractor depends on facts the opinion process does not resolve.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution provides in its last sentence that no member of the Legislature may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law. Tex. Const. art. XVI, § 40. Courts and the Attorney General have treated an assistant prosecutor as an employee rather than an officer. See Powell v. State, 898 S.W.2d 821, 825 (Tex. Crim. App. 1995). A "position of profit" has been described as salaried nontemporary employment, and a position can be held "under this State" even at the local level. See Willis v. Potts, 377 S.W.2d 622 (Tex. 1964); Begich v. Jefferson, 441 P.2d 27 (Alaska 1968). A prosecuting attorney may employ the assistant prosecuting attorneys, investigators, secretaries, and other office personnel needed for the office. Tex. Gov't Code Ann. § 41.102(a) (Vernon Supp. 2001). For purposes of chapter 41, "prosecuting attorney" means a county attorney, district attorney, or criminal district attorney. Id. § 41.101; see id. § 45.201 (Vernon 1988) (Harris County Attorney does not prosecute criminal cases).

Citations

Statutory provisions:

• Tex. Const. art. XVI, § 40
• Tex. Gov't Code Ann. § 41.102(a) (Vernon Supp. 2001)
• Tex. Gov't Code Ann. § 41.101
• Tex. Gov't Code Ann. § 45.201 (Vernon 1988)

Cases:

• Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1995)
• Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)
• Begich v. Jefferson, 441 P.2d 27 (Alaska 1968)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0430
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0430.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

November 6, 2001

The Honorable Michael A. Stafford
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002-1700

Opinion No. JC-0430

Re: Whether a member of the Texas House of Representatives may be employed as an assistant county attorney (RQ-0395-JC)

Dear Mr. Stafford:

You have requested our opinion as to whether a member of the Texas House of Representatives may be simultaneously employed as an assistant county attorney. For the reasons set forth below, we conclude that he may not be so employed.

The last sentence of article XVI, section 40 of the Texas Constitution provides:

No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law.

TEX. CONST. art. XVI, § 40. Both the courts and the attorney general have consistently said that an assistant district attorney is an "employee" rather than an officer. See Powell v. State, 898 S.W.2d 821, 825 (Tex. Crim. App. 1995); Tex. Att'y Gen. LO's 96-148, 89-082, 88-019. We believe it is equally clear that an assistant county attorney does not hold an "office" for purposes of article XVI, section 40.

It does not follow, however, that an assistant county attorney does not hold a "position of profit." A "position of profit" has been described as a "salaried nontemporary employment." See Tex. Att'y Gen. Op. No. H-1304 (1978) at 2; see also Begich v. Jefferson, 441 P.2d 27 (Alaska 1968). Furthermore, a compensated assistant county attorney holds a position of profit "under this State." In Willis v. Potts, 377 S.W.2d 622 (Tex. 1964), the Texas Supreme Court specifically determined that a member of a city council holds an office "under this state." Likewise, a school district employee holds a "position of profit under this state." Tex. Att'y Gen. LO-93-031, at 2. In our opinion, an assistant county attorney who is compensated from county funds unquestionably holds a "position of profit under this State." Id.

We note two opinions in which a legislator's holding of two different positions was held not to contravene article XVI, section 40, in circumstances somewhat similar to those you posit. In Attorney General Letter Opinion 93-031, this office said that a legislator was not as a matter of law prohibited from acting in the capacity of "independent contractor" for a school district on a part-time basis. Id. Similarly, in Attorney General Letter Opinion 95-022, the attorney general held that a legislator was not precluded from working as an independent contractor on a part-time basis for a county government. Tex. Att'y Gen. LO-95-022. Both opinions indicated that ultimate resolution of whether the legislator in fact qualified as an "independent contractor" would require the resolution of factual matters beyond the purview of the opinion process.

We do not believe, however, that an assistant county attorney may properly be classified as other than an "employee." Section 41.102 of the Government Code provides that "[a] prosecuting attorney may employ the assistant prosecuting attorneys, investigators, secretaries, and other office personnel that in his judgment are required for the proper and efficient operation and administration of the office."[1] TEX. GOV'T CODE ANN. § 41.102(a) (Vernon Supp. 2001) (emphasis added). We conclude that a state representative may not be employed as an assistant county attorney.

[1] Although the Harris County Attorney does not prosecute criminal cases, TEX. GOV'T CODE ANN. § 45.201 (Vernon 1988), section 41.101 defines "prosecuting attorney" for purposes of chapter 41 of the Government Code as "a county attorney, district attorney, or criminal district attorney." Id. § 41.101.

                                  SUMMARY

          A member of the Texas House of Representatives is prohibited by article XVI, section 40 of the Texas Constitution from simultaneously serving as an assistant county attorney.

                                         JOHN CORNYN
                                         Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee