Untitled Texas Attorney General Opinion ( 1973 )


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  • Honorable Wilson E. Speir                            Opinion No.    H- 7
    Director,   Texas Department
    of Public Safety                                     Re:   Whether persons holding
    P. 0. Box 4087                                             commissions     as Special
    Austin,   Texas  78773                                     Rangers pursuant to
    Art. 4413(D), Subsection
    (5) may also hold posi-~
    ``                          tions as certain other      ’
    Dear   Cal.   Speir:.                                      State officials or officers?
    Article .4413(11)( 5) provides that the Public Safety Commission      has
    authority to appoint Special Rangers under certain circumstances.            It
    details the extent of their authority and limits their number.        It provides
    that they: shall receive no compensation      from the State fortheir
    s&vices.
    You have requested our opinion as to whether the following
    State officers   or employees  could hold their job or office and, at the
    same time,     serve as a Special Ranger:
    (1)    An elected   judge of the State of Texas;
    (2)    A State legislator;
    (3)    An appointed member of the staff of an elected
    member of the state legislature;
    (4)    An elected member of the executive department              of
    the government of the State of Texas.
    Your question requires that we consider three            separate    and
    distinct limitations  upon the holding of dual offices:
    (1)   The common-law     doctrine that one person        may not
    hold two incompatible   offices;
    -24-
    Honorable   Wilson   E.   Speir,   page 2.   (H-7)
    (2)    The prohibition of Article 2, Section 1 of the
    Constitution of Texas (the Doctrine of Separation
    of Powers) that one person “being of one” depart-
    ment shall not exercise any power attached to
    either of the others;
    (3)    Limitations on dual office holding imposed by
    Sections 33 and 40 of Article 16 of the Constitution
    of Texas.
    Without knowing a great deal more about the duties of the person
    under consideration   for appointment as Special Ranger,    we cannot
    advise whether those duties would be incompatible     at common law with
    the duties of a Special Ranger.    You have called to our attention Attorney
    General Opinion No. O-1263(1939)     m
    . which it was held that a person could
    not hold the offices of deputy sheriff and Special Ranger at the same time
    because the two were incompatible.     This is in accord with the common
    law doctrine that one person may not hold two incompatible     offices.
    Thomas v. Abernathy County Line ,Ind.- School Dist.,     290 S. W. 15:2
    (Tex. Comm. App. (1927));   Pruitt v. Glen    Rose Ind. School     Dist. .No.   1,
    
    126 Tex. 45
    , 
    84 S.W.2d 1004
    (1935);   17
    ’  Tex. Jur. 2d, Public    Officers,
    Sec. 28, p. 42 and cases cited therein.
    Article 2, Section 1 of the Constitution of Texas,   after providing
    that the powers of the government    shall be divided into legislative,
    executive and judicial departments,    states:
    ,1. . . and no person, or collection of persons,
    being of one of these departments,    shall exercise any
    power properly attached ,to either of the others except
    in the instances herein expressly  permitted. ”
    The Texas Rangers are a part of the Department of Public
    Safety, an executive department.  Article 4413(l) et seq, Vernon’s
    Texas Civil Statutes.
    Article 4413(11)(5) defines Special Rangers and limits their
    powers.     It provides a maximum number to be appointed; that they
    shall not have any connection with any ranger company or uniformed
    unit of the Department    of Public Safety; that they shall be subject to
    -25-
    Honorable   Wilson   E. Speir,   page 3,     (H-7)
    the orders of the Commission       and the Governor;    that they shall not
    have authority to enforce any laws except those designed to protect
    life and property and are denied the authority to enforce any laws
    regulating the use of state highways; that they shall receive no
    compensation;    that they shall execute a bond.      These functions
    involve the exercise     of a “power properly attached to” the executive
    department and, therefore,       no person “being of one of” the other
    departments,    i. e. the Legislature   or the judiciary,   may be appointed
    a Special Ranger.      In City of Houston v. Stewart, -99 Tex. 67,87
    S. W. 663 (1905) the court, in holding that there was no constitutional
    prohibitiqn against conferring     certain additional executive powers
    upon~ a city alderman,     said, as dictum:
    “There is no constitutional    prohibition~against
    conferring power upon any officer except that the
    authority,vested  in the officers   of one department
    of the government   shall not be conferred upon those
    .~ of .another department.   . .,‘I (87 S. W. at ,665,)
    ~.
    We interpret this section of the Constitution to meant that “being
    of” one of the departments     includes more than just being one of
    the officers  of that department,     and that an employee of one de-
    partment is barred from assuming any position or office in either
    of the .oth&two    departments    if he exercises  governmental  powers
    in any d,epartment.
    We conclude,     therefore,   that an elected state ‘or county judge
    and a state legislator    would be barred from appointment as a Special
    Ranger by Article 2. Section 1 of the Constitution.        Likewise,   an
    appointed member of the staff of a member of the Legislature,
    “being of” the legislative    branch,   could not exercise   executive power
    as a Special Ranger,     whether or not his legislative    position involved
    the exerci~se of legislative   power.
    With reference  to the fourth category, i. e. “an elected member
    of the executive department of the government      of the State of Texas, ‘I
    it is possible that common law incompatibility     might apply although
    this is a factual question upon which we can have no present’ opinion.
    The separation of powers limitation of Article 2. Section 1 of the
    Constitution would not apply and, barring some incompatibility,
    eligibility for dual employment    would depend upon whether the provisions    of
    Sections 33 and 40 of Article 16 of the Constitution,both     of which
    were amepded in 1972, would.‘apply.
    -26-
    Honorable    Wilson   E.   Speir,     page 4.       (H-7)
    As amended   Section       33 of Article      16 of the Constitution   of Texas
    reads:
    “The Accounting Officers     in this State shall
    neither draw or pay a warrant or check on funds of the
    State of Texas,  whether in the Treasury     or other-
    wise, to any person for salary or compensation       who
    holds at the same time more than one civil office
    of emolument,   in violation of Section 40. ”
    As amended,    therefore,   Section 33 is entirely dependent upon
    a violation of Section 40.    Section 40, as amended, may be broken
    into five separate sentences or phrases:
    1. “No person shall hold or exercise           at the same
    time, more than one civil office of emolument,              except
    that of Justice of the Peace,         County Commissioner,
    Notary Public and Postmaster,            Officer of the National
    Guard, the National Guard Reserve,             and the Officers       ’
    Reserve     Corps of the United States and enlisted men of
    the National Guard, the National Guard Reserve,               and the
    Organized Reserves          of the United States, and retired
    officers of the United States Army,           Air Force,    Navy,
    Marine Corps,       and Coast Guard, and retired warrant
    officers,    and retired enlisted men of the United States
    Army,     Air Force,     Navy, Marine Corps,         and Coast
    Guard, and the officers and directors            of soil and water
    conservation     districts,     unless otherwise    specially
    provided herein.
    2.  “Provided,    that nothing in this Constitution shall
    be construed to prohibit an officer or enlisted man of the
    National Guard, and the National Guard Reserve,            or an
    officer in the Officers Reserve       Corps of the United States,
    or an enlisted man in the Organized Reserves           of the United
    States, or retired officers of the United States Army,
    Air Force,     Navy, Marine Corps,       and Coast Guard, and
    retired warrant officers,       and retired enlisted men of
    the United States Army,       Air Force,    Navy, Marine Corps,      and
    Coast Guar~d, and officers of the State soil and water con-
    servation districts,     from holding at the same time any
    other office or position of honor, trust or profit, under
    this State or the United States,      or from voting eat any
    election,    general,  special or primary     in this State
    when otherwise qualified.
    -27-
    Honorable    Wilson   E.   Speir,   page 5, (H-7)
    3. “State employees     or other individuals who
    receive all or part of their compensation     either directly
    or indirect1.y from funds of the State of Texas and who
    are not State officers,    shall not be barred from serving
    as members     of the governing   bodies of school districts,
    cities, towns, or other local governmental       districts;
    provided,   however,    that such State employees    or other
    individuals shall receive no salary for serving as
    members    of such governing bodies.
    4.  “It, is further provided, that a nonelective
    State officer may hold other nonelective      offices under the.
    State or the United States, if the other office is of benefit
    to the State of Texas or is required by the State or
    Feder.al law, land there is no conf’lict with the original
    office for which he receives., salary or compensation.
    .‘~ ``        5.. “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. ”
    The first of these does not apply to the situation about which you
    inquire because theoffice   of Special Ranger is not a “civil office of
    emolument. ”
    I
    The second sentence is likewise inapplicable because you do not
    ask about an officer or enlisted man in one of the services   or reserve
    components nor~ about an officer of any of, the State soil and water
    conseryaticn  districts.
    The third sentence~appl.ies to state employees   who seek positions
    on local goyerning bodies,   not within the scope, of your question.
    The fourth sentence applies to non-elective   offices and, since
    your question specifically inquires about an elected officer in the
    executive department of the government:,    it does not apply.
    -28-
    Honorable   Wilson   E.   Speir,   page 6,       (H-7)
    The fifth and last   sentence    applies      exclusively   to members    of the
    Legislature.
    We find nothing, therefore,  in either Section 33 or Section 40 of
    Article 16 of the Constitution to deny an elected member of the executive
    department an appointment as a Special Ranger.
    Your letter requested our opinion as to whether certain             specified
    officers  or employees   could be appointed as Special Rangers.                 Our
    answers are:
    (1) An elected       judge could not;
    (2)    A state legislator      could.not;
    (3) An appointed member of the staff of an elected                 member
    of the State legislature could not;
    (4) An elected      member of the executive          department    of
    the government       could be appointed.
    -SUMMARY-
    The office of Special Ranger is an office
    in the executive branch of the government        and
    appointment’of    an elected judge or a state legis-
    lator to be a Special Ranger would violate Article
    2, Section 1 of the Constitution.     Designation   of
    an appointed member of the staff of an elected
    member of the Legislature      likewise would be
    viblative of Article 2. Section 1 of the Constitution.
    An elected member of the executive depart-
    ment of the government-of’the    State of Texas may
    be appointed a Special Ranger provided there is no
    incompatibility  between the office of the appointee
    and the office of Special Ranger.
    -29-
    Honorable   Wilson   E. Speir.   page   7..    (H-7)
    Very   truly yours,
    J0HN.L.    H&L
    Attorney   General    of Texas
    APPROVED:
    DAVID M. KENDALL,         Chairman
    Opinion Committ.ee
    -3o-
    

Document Info

Docket Number: H-7

Judges: John Hill

Filed Date: 7/2/1973

Precedential Status: Precedential

Modified Date: 2/18/2017