Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 12,2004
D.C. Jim Dozier, J.D., Ph.D. Opinion No. GA-02 14
Executive Director
Texas Commission on Law Enforcement Re: Whether a peace officer may simultaneously
Officer Standards and Education hold a commission from more than one law
6330 U.S. Highway 290 East, Suite 200 enforcement agency (RQ-0163-GA)
Austin, Texas 78723
Dear Dr. Dozier:
On behalf of the Texas Commission on Law Enforcement Officer Standards and Education
(“TCLEOSE”), you ask whether a peace officer may simultaneously hold a commission from more
than one law enforcement agency.’ The law enforcement agency that appoints a peace officer
“commissions” him, thereby giving him the legal power to act as a peace officer. See 37 TAC
4 2 11.1 (a)(6),( 14) (2004). For purposes of this opinion, to “commission” a peace officer means to
employ or appoint the officer.
A law enforcement agency, such as a municipal police department, may not employ and
commission an individual as an office? unless the individual holds a peace officer license issued by
TCLEOSE. See TEX.Oct. CODE ANN. $9 1701.301, .307 (Vernon 2004). An “officer” subject to
TCLEOSE jurisdiction includes a “peace officer,” defined as “a person elected, employed, or
appointed as a peace officer under Article 2.12, Code of Criminal Procedure, or other law” and
a “reserve law enforcement officer” as defined by Occupations Code section 1701.001. See id
8 1701.001(3)-(4), (6),*see also TEX. CODE GRIM. PROC.art. 2.12 (Vernon Supp. 2004) (listing peace
officers). You ask whether a licensed individual may be appointed by and serve as a peace officer
at more than one law enforcement agency at the same time, raising Texas Constitution article XVI,
section 40 and the common-law doctrine of incompatibility as possible impediments. See Request
Letter, supra note 1, at 2.
‘Letter from D.C. Jim Dozier, Ph.D., Executive Director, Texas Commission on Law Enforcement Officer
Standards and Education, to Honorable Greg Abbott, Texas Attorney General (Jan. 9,2004) (on file with the Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
‘A statute may describe the person holding a public position as an “officer, ” but that title does not necessarily
mean the person holds a public office. See Tex. Att’y Gen. Op. Nos. JM-480 (1986) at 3 (Veterans County Service
Officer is not a civil officer or public officer); LO-90-62, at 3 (records management officer is an “officer” in name only).
Our use of the terms “police officer” and “peace officer” in this opinion does not mean that such persons are public
officers within Texas Constitution article XVI, section 40.
D.C. Jim Dozier, J.D., PhD. - Page 2 (GA-0214)
Texas Constitution article XVI, section 40 bars a person from holding more than one civil
office of emolument at the same time, with certain exceptions. See TEX. CONST.art. XVI, 5 40. A
“civil officer” under this provision is a public officer. See Ruiz v. State, 540 S.W.2d 809,8 11 (Tex.
Civ. App.-Corpus Christi 1976, no writ); Tex. Att’y Gen. Op. No. MW-415 (1981) (term “civil
office” used interchangeably with “public office”); see also State v. Pirtle, 887 S.W.2d 921, 931
(Tex. Crim. App. 1994) (“civil office” pertains to exercise of the powers or authority of civil
government).’ An “emolument” is compensation paid to the officer and does not include
reimbursement for actual expenses. See Tex. Att’y Gen. Op. No. GA-0132 (2003) at 2.
You note that the court in Irwin v. State determined that article XVI, section 40 barred two
City of Houston police officers from serving at the same time as special deputy sheriffs for Harris
County. See Request Letter, supra note 1, at 2; Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim.
App. 1944). Both positions were compensated. See Irwin, 177 S.W.2d at 973. Relying on prior
cases holding that a city policeman and a deputy sheriff were officers, the court concluded that each
Houston police officer held two “civil office[s] of emolument” in violation of article XVI, section
40. See id. (citing inter alia McDonald v. City of Dallas, 69 S.W.2d 175 (Tex. Civ. App.-Dallas
1934); Exparte Preston, 161 S.W. 115 (Tex. Crim. App. 1913); Murray v. State, 67 S.W.2d 274
(Tex. Crim. App. 1933)). But see McDonald v. City of Dallas, 69 S.W.2d 175 (Tex. Civ.
App.-Dallas 1934), rev’d, 103 S.W.2d 725,727 (Tex. 1937) (city policemen were not officers); Tex.
Att’y Gen. Op. No. DM-212 (1993) at 3-4 (distinguishing authorities cited in B-win). As a
consequence, a search and seizure conducted by the two police officers outside of Houston city limits
was invalid. See Irwin, 177 S.W.2d at 974. They had no authority as city police officers to conduct
the search outside city limits and they did not legally serve as special deputy sheriffs. See id.
Until 1993, attorney general opinions concluded, relying onh-win, that all peace officers were
public officers within article XVI, section 40. In Attorney General Opinion DM-2 12, however, this
office announced that it would no longer rely on Irwin to hold that peace officers were public officers
as a matter of law. See Tex. Att’y Gen. Op. No. DM-212 (1993) at 4. Instead, it would follow the
test for public officer stated by the Texas Supreme Court in Aldine Independent School District v.
StandZey to determine whether. a particular peace officer held a public office. See id. at 2. The
AZdine court determined that the decisive factor distinguishing a public officer from a public
employee is “whether any sovereign function of the government is conferred upon the individual to
be exercised by him for the benefit of the public largely independent of the control of others.” Aldine
Indep. Sch. Dist. v. StandZey, 280 S.W.2d 578,583 (Tex. 1955) (quotingDunbarv. Brazoria County,
224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref d)). The AZdine court also
referred to the indicia of office, such as holding a fixed term, that help insure an officer’s
independence from control by others. See Aldine, 280 S.W.2d at 581; Tex. Att’y Gen. Op. No. DM-
114 (1992) at 3.
Judicial decisions since Attorney General Opinion DM-212 have cited Irwin for its test for
“civil office of emolument,” but not for its holding that a city policeman or a deputy sheriff holds
an office. In State v. PirtZe, the Court of Criminal Appeals cited the Irwin definition of emolument
but relied on the Aldine test to conclude that assistant attorneys general were employees, not public
officers. See State v. Pirtle, 887 S.W.2d 921,93 1 (Tex. Crim. App. 1994); see also Powell v. State,
D.C. Jim Dozier, J.D., PhD. - Page 3 (GA-0214)
898 S.W.2d 821, 825 (Tex. Crim. App. 1994) (citing Aldine to determine that assistant district
attorney is an employee, not an officer, within Texas Constitution article XVI, section 40; stating that
Irwin avoided issue raised by article XVI, section 40).
To decide whether a particular peace officer holds a “civil office” within article XVI, section
40, we look at the statutes, ordinances, or constitutional provisions governing the officer to
determine “whether any sovereign function of the government is conferred upon the individual to
be exercised by him for the benefit of the public largely independent of the control of others.”
Aldine, 280 S.W.2d at 583. This test must be applied on a case-by-case basis and raises questions
of fact that cannot be resolved in the opinion process. See Tex. Att’y Gen. Op. No. DM-2 12 (1993)
at 2, 6. Since Attorney General Opinion DM-212 was issued, this office has issued opinions
considering whether particular peace officers are public officers, and these should provide
TCLEOSE with some guidance. See Tex. Att’y Gen. Op. Nos. GA-0101 (2003) at 3 (deputy sheriff
is not independently vested with governmental authority), JC-0148 (1999) at 2 (deputy constable acts
subject to the control and supervision of the constable and is a public employee), LO-98-035 at 2
(reserve deputy sheriffs are usually employees), LO-95-048 at 2, LO-93-27 at 2 (a municipal police
officer usually performs duties under the direction and control of others and therefore does not hold
an office). When TCLEOSE relies on the cited opinions to assist it in deciding whether a particular
licensee is a public officer, it should be aware of any differences between the licensee’s duties and
supervision and those described in the opinions.
If a peace officer is employed by two different law enforcement entities, you note that he is
“responsible to two different ‘masters “’and ask whether such employment violates the common-law
doctrine of incompatibility. See Request Letter, supra note 1, at 2. At one time, this office found
that certain dual employments violated the common-law doctrine of incompatibility. Attorney
General Opinion O-1263 determined that conflicting allegiances made the positions of deputy sheriff
and special ranger incompatible. “A deputy sheriff is subject to the orders of the sheriff. . . [and]
necessarily owes his allegiance to the sheriff.” Tex. Att’y Gen. Op. No. O-1263 (1939) at 2. “A
Special Ranger is subject to the orders of the Department of Public Safety and of the Governor.” Id.
The two positions were held to be incompatible because they could be subject to conflicting orders.
Attorney General Opinion H-727 (1975) relied on O-1263 to hold that common-law incompatibility
barred a deputy sheriff from serving as a town marshal who would be subject to the city council’s
authority. See Tex. Att’y Gen. Op. No. H-727 (1975) at 2. Subsequent opinions have overruled this
interpretation of common-law incompatibility. See Tex. Att’y Gen. Op. No. GA-0127 (2003) at 3
(“conflicting loyalties” incompatibility applies only where both positions are offices).
The common-law doctrine of incompatibility has three aspects: self-appointment, self-
employment, and conflicting loyalties. See id. at 2. All officers authorized to appoint someone to
another office are disqualified from the office over which they hold the appointive power. See
Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928). Self-employment incompatibility, which derives
from the self-appointment aspect of incompatibility, prevents one person from holding an office and
an employment that the office supervises. See Tex. Att’y Gen. LA-l 14 (1975) at 8 (concluding on
the basis of Ehlinger that a teacher in a school district may not serve as trustee for the same district);
see also Tex. Att’y Gen. Op. Nos. JC-0371(2001) at 2-5, LO-97-034, at 2. Finally, one person may
D.C. Jim Dozier, J.D., PhD. - Page 4 (GA-0214)
not hold two offices if their loyalties and duties are in conflict. See Thomas v. Abernathy County
Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App. 1927, judgrn’t adopted) (offices of
school trustee and city alderman were incompatible because the city council had supervisory powers
over school property within the city limits). The “conflicting loyalties” aspect of incompatibility
applies only where both positions are offices. See Tex. Att’y Gen. Op. Nos. GA-0127 (2003) at 3,
JC-0054 (1999) at 2.
The doctrine does not reach the practical difficulties involved in holding two positions, such
as the impossibility of being in two places at once. See Tex. Att’y Gen. Op. No. V-303 (1947) at 2;
see also Tex. Att’y Gen. Op. No. JM-8 19 (1987) at 6. Attorney General Opinions O-1263 and
H-727 address the practical difficulties ofholding two positions, not the legal incompatibility oftheir
functions. A peace officer does not violate the common-law doctrine of incompatibility solely
because he is employed and commissioned by two different law enforcement entities and is
responsible to two different employers.
We finally note that an individual peace officer may be subject to statutes, rules, ordinances,
or policies that limit additional employments. See generally Tex. Att’y Gen. Op. No. JC-0270
(2000) at 3. Thus, a peace officer who is considering a second employment must also consult such
provisions for additional restrictions on outside employment.
D.C. Jim Dozier, J.D., PhD. - Page 5 (GA-0214)
SUMMARY
Unless a peace officer holds a “civil office” within Texas
Constitution article XVI, section 40, that provision does not bar him
from being employed and commissioned by two law enforcement
agencies. A peace officer holds an office within article XVI, section
40, if a sovereign function of government is conferred upon him to be
exercised for the benefit of the public largely independent of the
control of others. This test must be applied on a case-by-case basis
considering facts relevant to the specific peace officer’s authority.
A peace officer does not violate the common-law doctrine of
incompatibility solely because he is employed and commissioned by
two different law enforcement entities and is responsible to two
different employers. The common-law doctrine of incompatibility
does not reach the practical difficulties involved in holding two
positions. Attorney General Opinions O-1263 (1939) and H-727
(1975) are overruled to the extent they incorrectly define the
common-law doctrine of incompatibility.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee