Can a county budget officer also be a staff employee of the county judge or commissioners court?

Plain-English summary

Webb County, with a population over 250,000, operates its budget under subchapter C of chapter 111 of the Local Government Code. The county auditor's office raised questions about how the commissioners court filled the county budget officer role. Originally, the request explained, the commissioners court had not established a budget office or appointed a single full-time budget officer, but had appointed two part-time budget officers, one of whom also worked as the executive administrator for the county judge and the other as the executive administrator for the commissioners court. The auditor's predecessor asked five questions about whether that arrangement was proper and whether it ran afoul of the incompatibility rules that keep certain officials from holding two conflicting positions.

The AG resolved the questions in three pieces. First, the original concern about two part-time officers and the missing budget office had been overtaken by events: after the request was submitted, the commissioners court appointed a county budget officer and an assistant budget officer, plus chapter 111 lets it hire personnel to assist the budget officer. The AG treated that first question as moot and did not address it (and noted nothing in chapter 111 requires the budget officer to be full-time).

Second, on the incompatibility questions, the AG concluded the doctrine did not bar the arrangement. Incompatibility has three branches: self-appointment, self-employment, and conflicting loyalties. Self-appointment and self-employment did not apply, because neither the budget officer nor the assistant sits on the commissioners court that appointed them. Conflicting-loyalties incompatibility kicks in only when both positions a person holds are public offices. Here, even assuming the budget officer holds a public office, the person's other job is an employee position under the county judge's direction, and the assistant budget officer is not an officer at all (no sovereign power) and likewise holds an employee position under the commissioners court. Because each person's second role is an employee position rather than a public office, conflicting-loyalties incompatibility did not prevent them from serving in both. That conclusion also disposed of a contingent fifth question.

Third, the AG declined the question about the county judge and a commissioner meeting with the budget officers to make budget decisions before the proposed budget is filed. Chapter 111 has the county judge serve as budget officer only in counties of 225,000 or less, and never has a commissioner serve as budget officer, so if the judge or a commissioner actually prepared the budget they would be acting contrary to subchapter C. But because the commissioners court ultimately adopts the budget, the judge and commissioners have reason to take part in budget conversations, and nothing in chapter 111 expressly forbids it. Whether their participation in department meetings amounts to "preparation of the budget" contrary to subchapter C is a question of fact, which is outside the scope of an AG opinion.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The county auditor's office that asked (as the opinion described it): The opinion answered that incompatibility did not bar the budget officer and assistant from also working for the county judge and commissioners court, treated the original two-part-time-officers question as moot, and declined the budget-meeting question as a fact issue.

County budget officers and assistant budget officers (as the opinion described them): The opinion treated them as able to hold a concurrent county employee position because the employee role is not a public office, so conflicting-loyalties incompatibility did not apply.

Commissioners courts (as the opinion described them): The opinion described the court's authority to appoint a budget officer under subchapter C as discretionary, allowed it to hire personnel to assist the budget officer, and recognized its ultimate responsibility to adopt the budget.

County judges and commissioners (as the opinion described them): The opinion noted they may take part in budget conversations with the budget officers given the commissioners court's role in adopting the budget, but left as a fact question whether participating in department meetings crosses into preparing the budget contrary to subchapter C.

Common questions

Can the same person be county budget officer and also work for the county judge?
Under this opinion, yes. The AG concluded conflicting-loyalties incompatibility applies only when both positions are public offices, and the staff job for the county judge is an employee position, not a public office.

Why didn't self-appointment incompatibility apply?
Because neither the budget officer nor the assistant serves on the commissioners court that appointed them, so they were not appointing or employing themselves.

Does the county budget officer have to be a full-time position?
The opinion said no. It read nothing in chapter 111 to require the budget officer to be full-time, and noted an earlier opinion implicitly recognized smaller counties' budget work could be a part-time task.

Can the county judge and a commissioner sit in on budget meetings with the budget officer?
The opinion said nothing in chapter 111 expressly prohibits their participation, and they have reason to take part because the commissioners court adopts the budget. But whether their participation amounts to actually preparing the budget contrary to subchapter C is a fact question the AG would not decide.

Could there be open meetings concerns?
The opinion noted in a footnote that three commissioners-court members are a quorum, and if a quorum attends department meetings where county business is discussed, that would be a meeting subject to the Open Meetings Act, though the requestor did not ask about that.

Background and statutory framework

Webb County, with a population over 250,000, elected to operate under subchapter C of chapter 111 of the Local Government Code, the alternative budget-preparation method for counties of more than 125,000 (Tex. Loc. Gov't Code §§ 111.061-.075). Subsection 111.062(a) provides that the commissioners court "may appoint a county budget officer," which the AG read as discretionary authority under the statutory definition of "may" (Tex. Loc. Gov't Code § 111.062(a); Tex. Gov't Code § 311.016(1)). After the request, the commissioners court appointed a county budget officer and an assistant budget officer, and chapter 111 authorizes hiring personnel to assist the budget officer (Tex. Loc. Gov't Code § 111.073), mooting the first question (Tex. Att'y Gen. Op. No. GA-1022 (2013)). Nothing in chapter 111 requires a full-time budget officer (Tex. Loc. Gov't Code §§ 111.001-.075; Tex. Att'y Gen. Op. No. GA-0580 (2007)).

The AG analyzed the dual roles under the three branches of common-law incompatibility, self-appointment, self-employment, and conflicting loyalties (Tex. Att'y Gen. Op. No. KP-0032 (2015)). Self-appointment and self-employment incompatibility preclude an officer from being appointed to or employed in a position over which the officer has appointment or employment authority (Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)), and did not apply because neither appointee serves on the commissioners court. Conflicting-loyalties incompatibility prohibits simultaneously holding two positions that would prevent independent and disinterested judgment (Tex. Att'y Gen. Op. No. GA-0169 (2004); Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)), but applies only when both positions are public offices. A public officer is one on whom a sovereign function of government is conferred to be exercised largely independent of the control of others (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955); Tex. Att'y Gen. Op. No. JC-0029 (1999)). Because each appointee's other role is an employee position rather than a public office, the AG concluded conflicting-loyalties incompatibility did not preclude the dual service.

On the budget-meeting question, chapter 111 has the county judge serve as budget officer only in counties of 225,000 or less and never provides for a commissioner to serve as budget officer (Tex. Loc. Gov't Code §§ 111.001, 111.002, 111.062(b)(1), 111.001-.095). Because the commissioners court is ultimately responsible for adopting the budget, the judge and commissioners have reason to participate in budget conversations (Tex. Loc. Gov't Code §§ 111.068, 111.071; Griffin v. Birkman, 266 S.W.3d 189, 194-95 (Tex. App.—Austin 2008, pet. denied), recognizing the commissioners court's broad discretion over the county budget under Tex. Const. art. V, § 18(b)), and nothing expressly prohibits it. Whether the described participation amounts to preparing the budget contrary to subchapter C is a fact question outside the scope of an AG opinion (Tex. Att'y Gen. Op. No. KP-0091 (2016)). A footnote observed that three commissioners-court members form a quorum (Tex. Gov't Code § 311.013(b); Tex. Loc. Gov't Code § 81.006(a)) and that a quorum attending such meetings could trigger the Open Meetings Act (Tex. Gov't Code § 551.001(4)).

Citations

Statutes and constitutional provisions:

• Tex. Loc. Gov't Code §§ 111.001, 111.001-.075, 111.001-.095, 111.002, 111.061-.075, 111.062, 111.062(a), 111.062(b)(1), 111.068, 111.071, 111.073, 81.006(a)
• Tex. Gov't Code §§ 311.013(b), 311.016(1), 551.001(4)
• Tex. Const. art. V, § 18(b)
• Tex. Att'y Gen. Op. Nos. GA-1022 (2013), GA-0580 (2007), KP-0032 (2015), GA-0169 (2004), JC-0029 (1999), KP-0091 (2016)

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Griffin v. Birkman, 266 S.W.3d 189 (Tex. App.—Austin 2008, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0172
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0172.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

November 13, 2017

Mr. Conrado M. Hein, Jr. Opinion No. KP-0172
Interim Webb County Auditor
1110 Washington Street, Suite 201 Re: Authority of a county commissioners court
Laredo, Texas 78040 under Local Government Code section 111.062
to appoint two part-time employees to fulfill the
functions of a county budget officer, and the
applicability of incompatibility rules to the
appointed employees (RQ-0165-KP)

Dear Mr. Hein:

    Your predecessor asked about the authority of a county commissioners court to fill the office of county budget officer. [1] His request letter informed us that Webb County (the "County") has a population in excess of 250,000 and elected to operate under subchapter C of chapter 111 of the Local Government Code. See Request Letter at 1; see also TEX. LOC. GOV'T CODE §§ 111.061-.075 (subchapter C entitled "Alternative Method of Budget Preparation in Counties with Population of More than 125,000"). He also told us the commissioners court did not establish the office of county budget officer nor did it appoint a full-time, single county budget officer, but instead appointed two county employees as part-time budget officers. See Request Letter at 1. He noted that one employee also serves as the executive administrator for the county judge, and the other employee serves as the executive administrator for the commissioners court. Id. at 2. With these facts your predecessor asked five questions. See id. at 1-2.

    Your predecessor first asked whether the "appointment of two part-time budget officers rather than one full-time separate budget officer and the failure to establish a county budget office violate the intent and the provisions of the budget preparation rules and methods of [Local Government Code] Section 111.062[.]" Id. at 1 (emphasis omitted). Local Government Code subsection 111.062(a) provides that the "commissioners court of the county may appoint a county budget officer to prepare a county budget for the fiscal year." TEX. LOC. GOV'T CODE § 111.062(a). The authority granted to a commissioners court to appoint a county budget officer and operate under subsection C is discretionary. See TEX. GOV'T CODE § 311.016(1) ("'May' creates discretionary authority or grants permission or a power."). Though the request letter asserted that the County did not establish the office of county budget officer or appoint a budget officer, but instead "appointed two part-time budget officers," the minutes from the commissioners court meeting of July 10, 2017, indicate that after the opinion request was submitted, it appointed a county budget officer as well as an assistant budget officer. Request Letter at 1 (emphasis omitted); Official Minutes for Webb Cty. Comm'rs Ct. Meeting of July 10, 2017; [2] see also TEX. LOC. GOV'T CODE § 111.073 (authorizing the commissioners court to employ personnel necessary to assist the budget officer). Thus, the concerns regarding the lack of establishment and appointment of a county budget officer and that two people share an officer position are now moot. [3] Accordingly, we do not address the first question. See Tex. Att'y Gen. Op. No. GA-1022 (2013) at 3 (declining to address moot questions).

    Your predecessor next asked whether the appointment of the county judge's employee is the "equivalent" of appointing the county judge as the budget officer in violation of the conclusion in Attorney General Opinion GA-0580 that the doctrine of incompatibility prevents a commissioners court from appointing the county judge to serve as county budget officer. See Request Letter at 2 (citing Tex. Att'y Gen. Op. No. GA-0580 (2007) at 3). Similarly, the third question is whether the commissioners court's appointment of an employee who answers to it is "equivalent" to appointing itself as budget officer. See id. We consider these individuals' dual roles under the three components of the common-law doctrine of incompatibility: self-appointment, self-employment, and conflicting-loyalties. See Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. Self-appointment and self-employment incompatibility preclude an officer from being appointed to or employed in a position over which the officer has appointment or employment authority. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Conflicting-loyalties incompatibility prohibits a person "from simultaneously holding two positions that would prevent the person from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2; see also Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (holding incompatible the positions of school trustee and municipal alderman).

    Here, self-appointment and self-employment incompatibility do not apply because neither the county budget officer nor the assistant budget officer serve on the commissioners court which appointed them. Conflicting-loyalties incompatibility applies only when both positions are "public offices." See Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. A "public officer" is one upon whom "any sovereign function of the government is conferred ... to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). A public office also involves the authority to perform largely independent of the control of others. See Tex. Att'y Gen. Op. No. JC-0029 (1999) at 2. "In other words, individuals who perform sovereign functions under the direction of another are not officers." Id. Assuming the budget officer is an officer under Aldine, his other position is that of an employee serving at the direction and control of the county judge. The assistant budget officer does not exercise any sovereign power under subchapter C, and thus is not an officer, and his other position is that of an employee, subject to the direction and control of the commissioners court. Because each person's other position is an employee position and not a public office, conflicting-loyalties incompatibility does not preclude them from serving in both roles. Given this conclusion, we need not address the fifth question which is contingent upon a different conclusion. [4]

    Fourth, your predecessor asked whether the county judge and a county commissioner or both may meet with the budget officers "in departmental budget meetings or in separate meetings with the intent of making budget decisions prior to the filing of the official proposed budget[.]" Request Letter at 2. This question involves the propriety of the county judge and a member of the commissioners court participating in meetings that the budget officer and the assistant budget officer may hold with the various County departments. [5] Chapter 111 as a whole provides that the county judge serves as the budget officer only in counties with a population of 225,000 or less. See TEX. LOC. GOV'T CODE §§ 111.001 (providing that subchapter A applies to county with population of 225,000 or less and that does not operate under subchapter C); 111.002 (providing the county judge serves as budget officer in a county operating under subchapter A); 111.062(b)(1) (requiring, in county abolishing the county budget officer position, that budget preparation duties devolve onto the county judge in counties with a population of 225,000 or less). In no instance does chapter 111 provide for a county commissioner to serve as budget officer. See generally id. §§ 111.001-.095. Thus, to the extent the county judge or a commissioner actually serves as the budget officer and prepares the budget, they would be acting contrary to subchapter C. See id. § 111.062. However, as it is the commissioners court that is ultimately responsible for adopting the budget, the county judge and the commissioners have reason to participate in conversations between the budget officer, the assistant budget officer, and the various County departments. See id. §§ 111.068 (requiring the commissioners court to act on the budget), 111.071 ("The budget officer may assist the commissioners court in the performance of the court's duties relating to the efficiency and effectiveness of county operations."); see also Griffin v. Birkman, 266 S.W.3d 189, 194-95 (Tex. App.—Austin 2008, pet. denied) (acknowledging that article V, section 18(b) of the Texas Constitution grants a county commissioners court power and broad discretion over the county budget and budgetary decisions). Moreover, nothing in Local Government Code chapter 111 expressly prohibits such participation. See TEX. LOC. GOV'T CODE §§ 111.001-.095. Yet, whether the situation described, the participation of the county judge and a commissioner in department meetings with the budget officer and the assistant budget officer, constitutes the preparation of the budget contrary to subchapter C involves issues of fact and, thus, exceeds the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0091 (2016) at 2 ("Fact finding is beyond the scope of an attorney general opinion[.]").

                                SUMMARY

                  The common-law doctrine of incompatibility does not prohibit two individuals appointed to the positions of county budget officer and assistant budget officer from serving in those positions because of their simultaneous employment as employees of the county judge and the county commissioners court, respectively.

                  Whether the participation of the county judge and a commissioner in department meetings with the county budget officer and the assistant budget officer constitutes the preparation of the budget contrary to chapter 111, subchapter C is a question of fact.

                                      Very truly yours,

                                      KEN PAXTON
                                      Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Mr. Leo Flores, Webb Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (June 6, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Available at http://www.webbcounty.com/AgendaandMinutes (last visited Oct. 17, 2017).

[3] The footnote in Attorney General Opinion GA-0580 to which your predecessor pointed as authority that a budget officer may not be part-time merely acknowledges that larger counties are ones in which "preparing the budget is not a part-time job." Tex. Att'y Gen. Op. No. GA-0580 (2007) at 3 n.2. In so doing, it implicitly recognizes that preparation of the budget in other counties could be a part-time task. Nothing in Local Government Code chapter 111 requires the budget officer to be a full-time position. See TEX. LOC. GOV'T CODE §§ 111.001-.075.

[4] The fifth question is if we determine that the employees cannot serve as budget officers, "will the provisions of Section 111.062 prohibit them from preparing the county's proposed budget and default the budget preparation to the county auditor[.]" Request Letter at 2.

[5] Your predecessor did not ask specifically about any Open Meetings Act implications of meetings involving members of the commissioners court. Three members of a commissioners court is a quorum for most purposes including adoption of the budget. TEX. GOV'T CODE § 311.013(b); TEX. LOC. GOV'T CODE § 81.006(a). If a quorum attends department meetings at which the county budget and other county business is discussed, it would be a meeting subject to the requirements of the Open Meetings Act. See TEX. GOV'T CODE § 551.001(4) (defining "meeting").