Texas Attorney General Opinion: LO93-031 Page: 2 of 3
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Honorable Libby Linebarger - Page 2 (LO-93-31)
Article XVI, section 40, Texas Constitution, provides, in part:
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. [Emphasis added.]
The question before us is therefore whether McCoulskey's relationship with the school
district requires the conclusion that he thereby holds a "position of profit under this State."
In Willis v. Potts, 377 S.W.2d 622 (Tex. 1964), the Texas Supreme Court held
that a city council member holds an "office... under... this State." Although Willis
addressed article MI, section 191 rather than article XVI, section 40, the court specifically
determined that the office of city council member is one which is held "under this state."
For purposes of the present inquiry, the inference is unavoidable that a compensated
school district employee holds a "position of profit under this state." However, the
prohibition of article XVI, section 40, has not, to our knowledge, ever been applied to a
person who acts in the capacity of "independent contractor."2 Because of the well-
established principle that any constitutional or statutory restriction on the right to hold
office should be strictly construed against ineligibility, Willis, 377 S.W.2d 622, it is our
view that the prohibition should not be extended to apply to independent contractors.
As we have noted, McCoulskey's arrangement with the school district bears many
of the indicia of an "independent contractor" relationship. The contract does not address,
however, the most important feature of the typical "independent contractor" relationship,
i.e., that the individual performs his duties under the contract largely free of the
supervision of any other person. See, Herndon v. Halliburton Oil Well Cementing Co.,
154 S.W.2d 163 (Tex.App., 1941, writ refd) (right of control is supreme test in
determining whether one is an employee or an independent contractor); see also 44
Tex.Jur.3d., Independent Contractors, 6, at 275 (collecting cases) The ultimate
resolution of this issue will require the consideration of factual inquiries which we cannot
address in the opinion process. We can suggest, however, the advisability of revising the
contract to make more explicit the precise nature of the relationship.
1Article m, section 19, states that "no person holding a lucrative office... under... this
state... shall. . . be eligible to the Legislature."
2Attorney General Opinion DM-76 (1992) is not to the contrary. In that decision, this office
stated that the nepotism statutes, V.T.C.S. article 5996a, et seq., do not distinguish between an employee
and an independent contractor, and thus, a county commissioner's court is barred from hiring, as an
independent contractor, a person who is related to a commissioner within the prohibited degree. We do
not believe that this principle can be justifiably applied to questions of dual office holding. Nepotism is
solely a creature of statute, and its prohibitions have been considerably liberalized in recent years.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO93-031, text, April 21, 1993; (https://texashistory.unt.edu/ark:/67531/metapth276617/m1/2/: accessed August 15, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.