Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
.
JIM MAlTOX July 11, 1986
Attorney General
Supreme Court Suildlng Ronorable Lloyd CKI.SS Opinion No. JM-519
P. 0. Box 12548
Chairman
Austin, TX. 78711. 2548
51214752501 Labor and Employm700 S.W.2d 1 ?:ex. App. - Houston [14th Dist.] 1983, no
writ) is instructive on the application of this provision to cases of
dual office holding. The -Turner V. Trinity Independent School
District case determined that a school trustee was not prohibited from
simultaneously holding the office of justice of the peace. It
discussed the effect of article II, section 1, of the Texas
Constitution as follows:
The policy behinqi Article 2, $1, is to prohibit
one branch of government from interfering with
functions consti,tutionally committed to other
branches of government. See Ruiz V. State, 540
S.W.2d 809, 812 (Tex. C1v.p~. - Corpus Christ1
1976, no writ). While we agree that a-Justice of
the Peace is a rlember of the Judicia.1branch of
government and a trustee of an independent school
district probably is a member of the Executive
branch, we find nothing to persuade us that
Chandler's functi.onsas Justice of the Peace have
interfered with or will interfere with his func-
tions as a member of the Board.
700 S.W.2d at 2.
A constable is also a member of the judicial branch. Tex. Const.
art. V, 118. We see no b.asis for concluding that an individual's
functions as constable wou1.d interfere with his functions as a member
of the school board. Nor do we believe that the individual's service
in an executive branch o:ffice of one political subdivision and a
iudicial branch office of another nolitical subdivision involves the
;xcessive concentration of power which article II. section 1, was
designed to prevent. %Q!?nerally Coates V. Windham. 613 S.W.2d 572
(Tex. Civ. App. - Austin 158'1,no writ).
The common law doctrine of incompatibility prevents one person
from holding two offices if the duties are inconsistent or in
conflict, or if one officme is subordinate to the other. Thomas v.
p. 2383
Honorable Lloyd Criss - Page 3 (JM-519)
-
Abernathy County Line Independent School District. 290 S.W. 152 (Tex.
Comm'n App. 1927, judgmt. Ttdopted); State v. Mae, 51 S.W.2d 815
(Tex. Civ. App. - .SanAntcnio 1932, nilit). See Attorney General
Opinions JM-203; JM-141 (198,4);JM-129 (1983); Letter Advisory No. 114
(1975).
The trustees of an independent school district "have the
exclusive power to manage and govern the public free schools of the
district." Educ. Code 123.26(b). A constable is a peace officer with
the law enforcement powers and duties determined by the legislature.
See, e.g., Code Grim. Proc. arts. 2.12-2.16; 14.01-14.06; 15.01,
15.15-15.18. The Supreme Court of Missouri, in deciding that the
office of deputy sheriff w,as not incompatible with that of school
board member, stated as foll#ows:
At common law the only limit to the number of
offices one perscn might hold was that they should
be compatible ani. consistent. The incompatibility
does not consist in a physical inability of one
person to dischar,gethe duties of the two offices,
but there must b's some inconsistency in the func-
tions of the two, -- some conflict in the duties
-- required of the officers, as where one has some
supervision of the others, is required to deal
with. control, 0:: assist him. . . . Sheriffs are
given power, and it is ma,de their duty, to preserve
the peace, arrest, and commit to jail all felons
and traitors, excfcuteall process, and attend upon
courts of record. The board of directors of the
St. Louis public school has charge, control, and
management of the public schools, and of all the
property appropriated to the use of the public
schools within said city. We are unable to dis-
cower the least incompatibility or inconsistency in
the public functions of these two offices, or where
they could by :?ossibility come in conflict or
antagonism, unless .the deputy sheriff should be
required to serve process upon a director as
such. We do' not think such a remote contingency
sufficient to create an incompatibility. The
functions of the two offices should be inherently
inconsistent and repugnant. . . .
State V. Bus, 36 S.W. 636, 639-40 (MO. 1896).
A prior opinion of this office also found that the office of
deputy sheriff is not incoapatible with the office of school trustee
of a common school district. Attorney General Opinion O-3308 (1941)
stated as follows:
p. 2384
Honorable Lloyd Criss - Pagsz4 (JM-519)
We have carefully considered the respective duties
of a deputy sher:.ffand of a school trustee of a
common school district and we have been unable to
find where any of .theduties falling upon a holder
of each respective office would necessarily be
inconsistent with or incompatible with the duties
of a person holding the other office. Neither do
we find any corresponding duties of either of said
offices which would necessarily unduly influence
the duties imposed.by law upon the holder of the
other office.
The constable has many duties in common with the sheriff and
deputy sheriff. See Code Grim. Proc. arts. 2.12-2.16; 14.01-14.06;
15.01; 15.15-15.18. We believe that the quotations from Attorney
General Opinion O-3308 and the Supreme Court of Missourialso describe
the relationship between tie offices of constable and school trustee
under Texas law. The two offices are not incomnatible. and the duties
thereof may be performed by the same person. See generally Turner v.
District, 700 S.W.2d 1 (Tex. App. - Houston
; State V. Martin, 51 S.W.2d 815 (Tex. Civ.
APP. - San Antonio 1932, no ,writ).
--
We conclude that an individual is not prevented from serving
concurrently as a school board member and a constable by article II,
section 1 or article WI, rrection40, of the Texas Constitution or by
the common law doctrine oi' incompatibility. We point out, however,
that constables are subject to article XVI, section 65 of the Texas
Constitution. Therefore, Lf a constable announces his candidacy or
becomes a candidate for the office of school trustee when his
unexpired term as constable exceeds one year, he thereby automatically
resigns the office of constable. Tex. Const. art. XVI, 540; see
Ramirez V. Flores, SOS S.W.2d 406 (Tex. Civ. App. - San Antonio 1973,
writ ref'd n.r.e.).
SUMMARY
One person is not prohibited from concurrently
holding the of!iices of constable and school
trustee by article II, section 1 of the Texas
Constitution, article XVI, section 40, of the
Texas Constitution. or the common law doctrine of
incompatibility.
JIM MATTOX
Attorney General of Texas
p. 2385
Honorable Lloyd Criss - Page 5 (JM-519)
rc-.
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2386