Untitled Texas Attorney General Opinion ( 1973 )

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;
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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
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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.
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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.
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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.
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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.
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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
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