Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from December 11, 2018 through January 10, 2019.

KP-0231 (Quorum and Absence from Meeting): To the extent a city council member is required by Rule 1.10(e)(1) of the Texas Disciplinary Rules of Professional Conduct to abstain from voting on a matter, the council member could be “required by law to abstain from voting” under the City of Fulshear’s home rule charter. Whether the charter language is so construed and whether a council member is bound by Rule 1.10(e)(1) are questions beyond the purview of an attorney general opinion.

Without any requirement from a state statute or a city charter, it is within the discretion of a home-rule city council to determine when to declare a council person absent from its meetings.

KP-0227 (Dual Service and Compensation of Legislator): To the extent the president of a municipal management district is a nontemporary, salaried employee of the district, he or she is prohibited by Article XVI, Section 40(d) of the Texas constitution from also serving as a state legislator. Article XVI, Section 40(d) does not prohibit an individual who works as an independent contractor from also serving as a state legislator. The Texas Supreme Court’s right-to-control test to determine whether an individual is an independent contractor is fact intensive, and a mere affirmation or joint statement without factual support is likely insufficient to establish an individual as an independent contractor.

Though generally a state legislator may accept a fee for work performed in a capacity other than as a legislator, provisions in Chapter 572 of the Government Code limit a legislator’s private employment. Penal Code Chapter 36 contains criminal provisions potentially applicable to a legislator’s private compensation. A violation of these provisions is determined based on relevant facts and outside the purview of an attorney general opinion. Instead, the Texas Ethics Commission may issue opinions on ethical questions or bring civil charges for a violation of Chapter 572, and local prosecutors may bring any criminal charges warranted by particular circumstances.

KP-0226 (Legislator): No statute specifically precludes a legislator from accepting compensation to represent a unit of local government before a state agency or another unit of local government. Article XVI, section 40(d) of the Texas constitution precludes a legislator from providing services as an employee of a unit of local government.

A legislator may not solicit, accept, or agree to accept any benefit from any person unless the legislator gives legitimate consideration in a capacity other than as a public servant. Whether a payment to a legislator constitutes bona fide consideration for providing representation before a state agency or a unit of local government will depend on the particular facts.

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