Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 12, 2016
The Honorable Rebecca R. Walton Opinion No. KP-0122
Hardin County Attorney
Courthouse, Second Floor Re: Simultaneous service as a municipal
Post Office Box 516 police chief and a constable (RQ-0112-KP)
Kountze, Texas 77625
Dear Ms. Walton:
You tell us that the City of Lumberton police chief won the March primary election for
constable of Precinct 5 and will take office on January 1, 2017, given that he drew no opponent
for the November general election. 1 You state that Lumberton is located in Precinct 5. See
Request Letter at 1. Thus, you ask whether the police chief may simultaneously serve as constable
in that precinct. You raise two potential barriers to such dual service: the constitutional prohibition
on dual office holding and the common-law doctrine of incompatibility.
Article XVI, section 40(a) of the Texas Constitution provides that "[n]o person shall hold
or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI,
§ 40(a). The prohibition applies if both positions are civil offices entitled to an emolument. State
ex. rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). An
emolument is "a pecuniary profit, gain, or advantage." Id. You state that both of the positions are
compensated. Request Letter at 1. Thus, the applicability of the constitutional dual office holding
prohibition turns on whether the two positions are "offices."
The Attorney General has ''consistently determined that the office of constable is a public
office within the scope of article XVI, section 40." Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2;
see also Tex. Att'y Gen. Op. No. GA-0540 (2007) at 2. Whether a municipal police chief is also
a public officer within the meaning of article XVI, section 40, depends on "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 ofthe control of others." Aldine Indep. Sch. Dist. v. Standley,
280 S.W.2d 578, 583 (Tex. 1955). You tell us that the Lumberton police chief "is employed by
and serves at the will of the Lumberton City Council." Request Letter at 2; see also LUMBERTON,
TEX., CODE OF ORDINANCES ch. 3, § 3 .08 (2016) (providing that the police chief is an appointed
city officer and that removal of such officers "shall be at the discretion of' the city council).
1
See Letter from Honorable Rebecca R. Walton, Hardin Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (May 23, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Rebecca R. Walton - Page 2 (KP-0122)
Because the police chief is subject to removal at any time at the discretion of the city council, he
does not exercise his authority "largely independent of the control of others" and thus does not
hold an "office" within the meaning of article XVI, section 40. See Tex. Att'y Gen. Op. No. GA-
0393 (2006) at 3 (recognizing the inapplicability of a "public officer" designation ifthe person's
"actions are subject to control and his employment may be terminated at will by a superior body"). 2
Accordingly, the constitution does not prohibit the municipal police chief from simultaneously
holding the office of constable in the same precinct in which Lumberton is located.
The common-law doctrine of incompatibility has three aspects: self-appointment, self-
employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. KP-0032(2015) at 2. You explain
that the first two aspects "do not apply in this situation because neither position appoints or
employs the other." Request Letter at 2. The remaining aspect, conflicting loyalties, derives from
the 1927 case of Thomas v. Abernathy County Line Independent School District, where the court
found the offices of school trustee and city alderman to be incompatible:
In our opinion the offices of school trustee and alderman are
incompatible; for under our system there are in the city council or
board of aldermen various directory or supervisory powers exertable
in respect to school property located within the city or town and in
respect to the duties of school trustee performable within its limits -
e.g., there might well arise a conflict of discretion or duty in respect
to health, quarantine, sanitary, and fire prevention regulations. If
the same person could be a school trustee and a member of the city
council or board of aldermen at the same time, school policies, in
many important respects, would be subject to direction of the
council or aldermen instead of to that of the trustees.
Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927,
judgm't adopted) (citations omitted). Like the constitutional dual-office holding provision, the
conflicting-loyalties aspect of incompatibility applies only when the two positions at issue are
"offices." Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. Because the Lumberton police chief
does not hold a "public office" under A/dine, the conflicting-loyalties aspect of the common-law
doctrine of incompatibility does not bar him from simultaneously holding the position of constable
in the same precinct.
2 Previously,opinions of this office concluded that city police officers, among others, held "office" within
the meaning of article XVI, section 40 as a matter of law. See, e.g., Tex. Att'y Gen. L0-92-036 (1992) at 1; Tex.
Att'y Gen. Op. No. JM-422 (1986) at 2 (concluding that the position of municipal police chief was an "office" that
could not be held simultaneously with the office of constable in the same precinct). For decades, however, this office
has instead used the A/dine test to determine whether a person holds an "office" within the meaning of article XVI,
section 40. See Tex. Att'y Gen. Op. Nos. DM-212 (1993) at 2-5 (explaining the reasoning behind the shift to the
A/dine test), GA-0393 (2006) at 3 & n.4.
The Honorable Rebecca R. Walton - Page 3 (KP-0122)
SUMMARY
Neither article XVI, section 40 of the Texas Constitution nor
the common-law doctrine of incompatibility bars the City of
Lumberton police chief from simultaneously holding the position of
constable in the same precinct where the city is located.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee