Could one person simultaneously serve as Galveston County auditor and a Galveston city council member?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-133: County Auditor and City Council Incompatibility
Plain-English summary
JM-133 concluded that one person could not simultaneously serve as Galveston County auditor and a Galveston city council member because the offices were incompatible at common law.
"Upon examination of the relevant statutes, we conclude that the common law doctrine of incompatibility prohibits one person from simultaneously occupying the offices of city councilman and county auditor of a county in which the city is located."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Because the person held the city office first and then accepted appointment as county auditor, the opinion concluded that acceptance of the second, incompatible office automatically vacated the council seat.
"Accordingly, we conclude that the individual involved here vacated the office of city councilman when he accepted the position of county auditor."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Currency note
This opinion was issued in 1984. 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.
Common questions
What facts prompted the request?
The individual was elected to the Galveston city council and later appointed Galveston County auditor. The county paid the auditor salary, while the city council office was unpaid.
"You inform us that an individual was elected to the city council of Galveston, Texas, and subsequently was appointed to be county auditor of Galveston County."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf"The materials included with your letter to this office indicate that he receives a salary from the county for his services as auditor but draws no salary from the city in his official capacity."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
What does common-law incompatibility prohibit?
It bars one person from holding two offices when one can impose its policies on the other or otherwise subject the other to control.
"The doctrine of incompatibility prohibits one person from occupying two offices when one office may 'thereby impose its policies on the other or subject it to control in some other way.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
How could the city and county interact?
City council members could approve agreements with the county involving regional planning, public-health improvements, and joint recreational facilities or programs.
"[C]ity council members may authorize agreements between the city and county to provide for, inter alia, the following: the creation of regional planning commissions . . .; the construction and payment of improvements necessary for the public health . . .; the construction and supervision of joint recreational facilities and programs."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
What authority did the county auditor have?
The auditor had general oversight of county financial books and records and responsibility for strict enforcement of county-finance law.
"[G]eneral oversight of all the books and records of all the officers of the county, district or state, who may be authorized or required by law to receive or collect any money, funds, fees, or other property for the use of, or belonging to, the county; and he shall see to the strict enforcement of the law governing county finances."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
The commissioners court could not spend county funds without the auditor's approval, though refusal could not be arbitrary or unlawful.
"Although the auditor may not independently order the expenditure of county funds, the commissioners court may not expend funds without the approval of the county auditor."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf"The auditor in such instances may withhold approval of payments, though the refusal to approve payments may be neither arbitrary nor in contravention of law."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Why did those duties conflict with city council service?
City-county transfers of funds or property could require the person to act for the city as council member and then review or withhold approval for the county as auditor.
"Thus, there are many instances in which the duties of the auditor are likely to conflict with the performance of city council duties, particularly when the transfer of funds or property between the city and county is involved."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Which office became vacant?
The earlier city office. Under the vacation doctrine, accepting and qualifying for an incompatible second office relinquished the first.
"Persons who accept and qualify for offices that are incompatible with offices they already hold ipso facto relinquish their prior posts."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Background and legal framework
The county auditor was appointed by the district judge or judges with jurisdiction in the county under article 1645.
"The county auditor is appointed pursuant to article 1645, V.T.C.S., by the district judge(s) having jurisdiction in the county."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
The request also asked about participation in a tax reinvestment zone, park-board appointments, and other city matters involving county interests. The incompatibility conclusion meant the individual could not continue occupying both offices.
"We conclude therefore that the positions of city councilman of Galveston and county auditor of Galveston County are incompatible as a matter of law."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Holding
"The common law doctrine of incompatibility prohibits a Galveston city council member from simultaneously serving as Galveston county auditor."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0133
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0133.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
March 5, 1984
Honorable Lloyd Criss
Chairman
Committee on Labor and Employment Relations
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769
Opinion No. JM-133
Re: Whether an individual may serve simultaneously as county auditor and city councilman of a city located in that county
Dear Representative Criss:
You inform us that an individual was elected to the city council of Galveston, Texas, and subsequently was appointed to be county auditor of Galveston County. The materials included with your letter to this office indicate that he receives a salary from the county for his services as auditor but draws no salary from the city in his official capacity. Questions have arisen as to the propriety of this person occupying both offices. You ask whether this person is prohibited by law from simultaneously holding both offices, and if so, whether the city office is now vacant. You also ask whether article 988b, V.T.C.S., or any other law prohibits this person from participating in
(1) decisions involving a city-created tax reinvestment zone, or
(2) appointments to the city's park board of trustees, or any other matter involving the county and park board requiring city council action.
Upon examination of the relevant statutes, we conclude that the common law doctrine of incompatibility prohibits one person from simultaneously occupying the offices of city councilman and county auditor of a county in which the city is located.
The doctrine of incompatibility prohibits one person from occupying two offices when one office may "thereby impose its policies on the other or subject it to control in some other way." Attorney General Opinion JM-129 (1984); see Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm. App. 1927); State ex rel. Brennan v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ). In this respect, we observe that city council members may authorize agreements between the city and county to provide for, inter alia, the following: the creation of regional planning commissions which are authorized to contract with cities and counties for the performance of enumerated services, see V.T.C.S. art. 1011m, §4; the construction and payment of improvements necessary for the public health and to promote efficient sanitary regulations, see V.T.C.S. art. 1015, §3; the construction and supervision of joint recreational facilities and programs, see V.T.C.S. art. 1015c-1, §3.
The county auditor is appointed pursuant to article 1645, V.T.C.S., by the district judge(s) having jurisdiction in the county. This office has previously determined that a county auditor may not be simultaneously employed as a school teacher and a county probation officer. Letter Advisory No. 65 (1973). The county auditor is charged with the
general oversight of all the books and records of all the officers of the county, district or state, who may be authorized or required by law to receive or collect any money, funds, fees, or other property for the use of, or belonging to, the county; and he shall see to the strict enforcement of the law governing county finances.
V.T.C.S. art. 1651. The auditor is additionally authorized to examine the accounts and orders of the commissioners court, all reports of collections of money for the county, and cash in the hands of the county treasurer. V.T.C.S. arts. 1653-1655. Although the auditor may not independently order the expenditure of county funds, the commissioners court may not expend funds without the approval of the county auditor. Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App. - Dallas 1976, writ dism'd). The auditor in such instances may withhold approval of payments, though the refusal to approve payments may be neither arbitrary nor in contravention of law. Id. at 460. See also Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. App. - Houston [14th Dist.] 1979, writ ref'd n.r.e.). Thus, there are many instances in which the duties of the auditor are likely to conflict with the performance of city council duties, particularly when the transfer of funds or property between the city and county is involved. We conclude therefore that the positions of city councilman of Galveston and county auditor of Galveston County are incompatible as a matter of law.
The incompatibility of these two offices invites application of the common law doctrine of vacation:
Persons who accept and qualify for offices that are incompatible with offices they already hold ipso facto relinquish their prior posts.
Attorney General Opinion MW-170 (1980). See Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ. App. - San Antonio 1961, no writ); Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.); Attorney General Opinions MW-170 (1980); H-155, H-117 (1973). Accordingly, we conclude that the individual involved here vacated the office of city councilman when he accepted the position of county auditor.
SUMMARY
The common law doctrine of incompatibility prohibits a Galveston city council member from simultaneously serving as Galveston county auditor.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
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