Untitled Texas Attorney General Opinion
KP-0172
| Tex. Att'y Gen. | Jul 2, 2017Background
- Webb County (pop. >250,000) operates under Local Government Code subchapter C (alternative budget preparation for larger counties).
- Commissioners court had not established a formal county budget office and had been using two part-time employees to perform budget duties; after the request, it appointed a county budget officer and an assistant budget officer.
- One appointee also serves as the county judge’s executive administrator; the other serves as the commissioners court’s executive administrator.
- Questions raised: whether appointing two part-time budget officers (and not a single full-time officer) complies with section 111.062; whether the dual roles violate the common-law doctrine of incompatibility; and whether the county judge/commissioner may participate in departmental budget meetings without running afoul of subchapter C.
- Attorney General concluded the appointment issue became moot after the court appointed a budget officer and assistant; analyzed incompatibility and permissibility of county judge/commissioner participation in meetings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointing two part-time budget officers (and not creating a formal office) violates §111.062 | Two part-time appointees and no formal office contravene the statute’s intent (budget prep is not part-time in large counties) | Commissioners court has discretionary authority; statute does not mandate a full-time officer or formal office | Moot — commissioners court later appointed a budget officer and assistant; statute does not require a full-time officer |
| Whether appointing the county judge’s employee as budget officer is equivalent to appointing the county judge (self-appointment/self-employment incompatibility) | Equivalent appointment would violate incompatibility rule (per GA-0580 re: county judge as budget officer) | Appointee is an employee, not the judge; appointee does not sit on commissioners court and thus no self-appointment/self-employment conflict | Not incompatible on self-appointment/self-employment grounds because appointees are not members of the appointing body |
| Whether dual roles create conflicting-loyalties incompatibility (serving as budget officer and as employee under county officials) | Dual roles would compromise independent judgment and be prohibited by incompatibility doctrine | Appointees’ other roles are employee positions subject to direction and control, not sovereign public offices; thus no conflicting-loyalties incompatibility | No conflicting-loyalties incompatibility because the other positions are employee roles, not independent public offices |
| Whether county judge and a commissioner may attend departmental budget meetings with budget officers before the official proposed budget is filed (and whether that amounts to improper budget preparation) | Their participation could equate to preparing the budget in violation of subchapter C | Commissioners court members have responsibility over budget adoption and may assist/participate; chapter 111 does not expressly prohibit such participation | Participation is not per se prohibited; whether it constitutes improper budget preparation is a factual question beyond an AG opinion |
Key Cases Cited
- Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928) (defines self-appointment and self-employment incompatibility principles)
- Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955) (definition of "public officer" involving sovereign functions and independence)
- Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927) (conflicting loyalties can render dual positions incompatible)
- Griffin v. Birkman, 266 S.W.3d 189 (Tex. App.—Austin 2008) (commissioners court has broad constitutional authority and discretion over county budget)