Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 22, 1981
MARK WHITE
This Obinion Overrules LA-63
Attorney General
Supreme Court Building
Honorable Henry Wade opinion No. MW-415
P. 0. Box 12546
Dallas Criminal District Attorney
Austin. TX. 76711 Condemnation Section Re: Whether one person may
5121475.2501 6th Floor Records Building serve at same time as deputy
Telex 9101674-1367 Dallas, Texas 75202 district clerk and deputy
TelecoDier 51214750266
county clerk
Dear Mr. Wade:
1607 Main St., Suite 1400
Dallas, TX. 75201 At the request of the Commissioners Court of Dallas County, you
2141742-6944 have asked whether a person may serve as a deputy district clerk at
the same time the person serves as a deputy county clerk.
4624 Alberta Ave., Suite 160
El Paso, TX. 79905 Unlike counties with a population of less than 8,000, Dallas
9151533-3464 County is not authorized by the Texas Constitution to elect a single
"clerk" who performs the duties of both district clerks and county
clerks; Dallas County elects both officers. Tex. Const. art. V. $99,
1220 Dallas Ave., Suite 202
Houston, TX. 77002
20. Each of them is given statutory authority to appoint deputies.
71316500666 -See V.T.C.S. arts. 1898, 1938, 3902.
Deputies so appointed, however, exercise power in the name of the
606 Broadway, Suite 312
Lubbock, TX. 79401
officer who appointed them and not in their own right; they do not
6061747-5236
succeed to the office if it becomes vacant. Cf. V.T.C.S. arts. 1896,
1936 (clerks pro ternpore); Code Grim. PrE. art. 2.22 (duties
performed by deputies). Such deputies are employees, not officers.
4309 N. Tenth, Suite B Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Attorney General Opinion
McAllen, TX. 76501
5121662.4547
H-1144 (1978). Cf. Donges V. Beall, 41 S.W.2d 531 (Tex. Civ. App. -
Ft. Worth 1931, wfit ref'd) (impliedly overruled per Green V. Stewart,
supra) .
200 Main Plaza, Suite 400
San Antonio, TX. 76205 We do not believe that express statutory authorization is
5121225-4191
necessary in order for one person to serve as both deputy district
clerk and deputy county clerk. However, he may not hold both
An Equal OppOrtunityI positions if he would thereby violate article XVI, section 40 of the
Affirmative Action Employe! Texas Constitution.
Article XVI, section 40 of the Texas Constitution generally
prohibits one person from holding or exercising more than one civil
office of emolument at the same time, but if the positions held by the
deputies do not constitute "civil offices," their occupancy by a
single person would not violate the provision. In 1973, before the
Green V. Stewart case, supra, was decided, this office issued Letter
p. 1415
Honorable Henry Wade - Page 2 (MW-415)
Advisory No. 63, which made a distinction between a "civil office," as
used in section 40, article XVI of the constitution, and a "public
office," as used elsewhere in the constitution. The distinction was
based upon the different treatments accorded those terms by the Texas
Supreme Court with respect to the several constitutional rights of
school district tax assessors. Compare Pruitt V. Glen Rose
Independent School District, 84 S.W.Zd 1004 (Tex. 1935), with Aldine
Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955).
However, cases decided since Letter Advisory No. 63 was issued render
its analysis inappropriate in deciding article XVI, section 40 dual
office questions. Accordingly, since the positions of deputy county
clerk and deputy district clerk are not "public offices," they cannot
be "civil offices" within the meaning of article XVI, section 40 of
the constitution.
The Texas Supreme Court in Aldine Independent School District,
supra, discussed, but did not expressly overrule, a prior inconsistent
holding in Pruitt. It merely- noted that the two cases involved
different constitutional provisions (sections 30 and 40 of article
XVI). This distinction suggested that a "public officer" in section
30 of article XVI was something different from the holder of a "civil
office" in section 40, and prompted the conclusion of Letter Advisory
NO. 63 that a "'civil office' is something more than a 'public
employment' and something less than a 'public office."'
In Green V. Stewart, a, the supreme court declared that the
Aldine Independent Scho'
01 District case impliedly overruled Donges V.
Beall, sup+a. If the Aldine! Independent School District decision did
not also impliedly overrule Pruitt v. Glenrose Independent School
District, supra, in our opinion the Green V. Stewart case did. The
latest case to follow them in defining "public officer" for various
purposes is Pena V. Rio Grande City Consolidated Independent School
District, 616 S.W.Zd 658 (Tex. Civ. App. - Eastland 1981, no writ).
See also Harris County V. Schoenbm, 594 S.W.2d 106 (Tex. Civ. App.
- Houston 1979, writ ref. n.r.e.); Ruiz V. State, 540 S.W.2d 809 (Tex.
Civ. ADD. - Cornus Christi 1976. no writ). Cf. Attornev General
Opinion'MW-39 (19'79);Letter Advisbry No. 137 (lG7). The I&z court
applied the Aldine Independent School District definition of "public
officer" to section 40 "civil offices." Insofar as is necessary here,
Letter Advisory No. 63 (1973) is overruled.
It is possible, of course, that the common law doctrine of
incompatibility would prevent one person from holding the two deputy
positions, but "incompatibility" is ordinarily a fact question. See
State V. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no
writ); Letter Advisory No. 137 (1977). This office is not equipped to
pass upon disputed matters of fact in its opinion process. Absent
"incompatibility," no provision of law has been brought to our
attention that would prevent one person, if qualified, from holding
both positions if the district clerk of Dallas County and the county
clerk of Dallas County agree to appoint the person as their joint
deputy. Compensation for the joint employment should be set by the
p. 1416
Honorable Henry Wade - Page 3 (Mw-415)
commissioners court pursuant to article 3912k, V.T.C.S. See V.T.C.S.
arts. 3902, 3912k; Renfro v. Shropshire, 566 S.W.2d 6883s~. Civ.
APP. - Eastland 1978, writ ref'd h.r.e.). An employee who serves in
this dual capacity is not necessarily entitled to the compensation
that would be earned by two persons each serving full time as a deputy
clerk.
SUMMARY
Texas law does not prevent one person from
serving in the dual capacity of deputy county
clerk and deputy district clerk of Dallas County.
Compensation for the joint employment should be
set by the commissioners court. An employee who
serves in this dual capacity is not necessarily
entitled to the compensation that would be earned
by two persons each serving full time ss a deputy
clerk.
MARK W H-I T E
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1417