Untitled Texas Attorney General Opinion

Mr. James B. Adams Opinion No. JM-588
Director
Texas Department of Re: Whether article XVI, section
Public Safety 40 of the Texas Constitution pro-
P. 0. Box 4087 hibits DPS officers from serving as
Austin, Texas 78773 members of the governing bodies of
school districts, cities, towns, or
other local governmental bodies
Dear Mr. Adams:
You ask whether articl,eXVI, section 40, of the Texas Constitu-
tion prohibits commissionei.Department of Public Safety [DPS] officers
from serving on the governing bodies of school districts, cities,
towns, or other local gove.cnmentaldistricts. Article XVI, section
40, provides in part:
Sec. 40. No person shall hold or exercise at
the same time. more than one civil office of
emolument. . . .
. . . .
State employees or other individuals who receive
all or part of their compensation either directly
or indirectly frtilfunds of the State of Texas and
who are not St& officers, shall not be barred
from serving as &:mbers 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. (Emphasis added).
Attorney General Opinion H-1027 (1977) considered whether
commissioned officers of the Department of Public Safety were
I,
appointed officers" required to take the constitutional oath of
office. See Tex. Const. art:.XVI, 51. The opinion concluded that DPS
officers were appointed officers who were required to take the oath,
reasoning as follows:
Rangers and offic'erscommissioned by the Director
of the Department of Public Safety are
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Mr. James B. Adams - Page 2 (JM-588)
---.
specifically des:.gnated as 'peace officers' by
article 2.12 of the Code of Criminal Procedure.
Policemen have bean described by the Supreme Court
of Texas as 'pub!& officers,' Sawyer v. City of
San Antonio, 234 S.W.2d 398, 401 (Tex. 1950). We
have also conclu(.edthat 'a uoliceman occuoies a
civil office.' I,etter Advisory No. 63 (1973) at
2. We believe that officers commissioned by the
Department of Public Safety likewise hold a
'public office' and a 'civil office' and must,
therefore, take the constitutional oath of office
before entering upon their duties. Indeed,
officers of the Highway Patrol Division of the
Department of :?nblic Safety are statutorily
required to take the oath. V.T.C.S. art.
6701d-11. 016. ---
Se,eV.T.C.S.. art. 4413(12).
Section (4) of article 4413(11) states that officers of the Texas
Rangers "shall be clothed %J:Lth
all the powers-of peace officers, and
shall aid in the execution of the laws." Officers of the Highway
Patrol Division are "clothed with all the powers and authority which
is . . . given to members of Texas Banger force." V.T.C.S. art.
4413(12), -§(4). See also ,$win v. State.-177 S.W.2d 970 (Tex. Grim.
App. 1944) (city policeman and deputy sheriff are officers); Attorney
General Opinion V-229 (19b.r) (members of state highway patrol -are
officers).
We conclude that compensated DPS officers are subject to article
XVI, section 40, of the Texas Constitution, and may not hold a second
civil office of emolument.
A compensated officer is not prohibited by article XVI, section
40 from holding a second cffice to which no emoluments attach. See,
s, Educ. Code 123.19(e) (trustees of independent school district do
not receive emoluments). The personnel of your agency are, however,
also subject to a statutor)'prohibition on political activity:
No person in the Department shall contribute any
money or other thing of value for political
purposes, nor shall any person in the Department
engage in politi~:alactivities or campaign for or
against any candLdate for any public office in
this state. Any PIersonviolating any provision of
this subsection s,hall forfeit his position with
the Department.
V.T.C.S. art. 4413(g), P(2). See V.T.C.S. art. 6252-9f. 55. This
provision forbids DPS perrzonnel~om engaging in partisan political
activities, including campaigning for an elected office. Attorney
General Opinion MW-149 (1980); -see Attorney General Opinion M-1099
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Mr. James B. Adams - Page 3 (JM-588)
.
P
(1972). The following pro\%sion of article XVI, section 40 overrides
article 4413(g), section (2) with respect to DPS employees:
State employees or other individuals who receive
all or Dart of their comoensation either directlv
or indirectly from funds bf the State of Texas and
who are not Stat,e officers, shall not 'be barred
from serving as m&bers of the governing bodies of
school districts, cities, towns, or other local
governmental districts; provided, however, that
such State emplayees or other individuals shall
receive no salar:rfor serving as members of such
governing bodies.
Article XVI, section 40 pr'otects a state employee from dismissal on
the ground that he is a cs,ndidatefor one of specified local offices
or holds such an office. Attorney General Opinion MW-149 (1980);
Attorney General Opinion N-,659 (1975). Department of Public Safety
Officers are not, howeve,:!,covered by the quoted constitutional
provision. Articie 4413(9:, section (2) would prohibit a DPS officer
from running for or holding a partisan office in local government.
Particular instances cf dual office holding may also be barred by
the common law doctrine oE~incompatibility or by the separation of
powers doctrine embodied in article II. section 1, of the Texas
Constitution. See Thomas v. Abernathy County Line Independent School
District, 290 m. 152 (Tax. Comm'n App. 1927); Attorney General
Opinions JM-203, JM-141 (1484).
SUMMARY
Commissioned~ officers of the Department of
Public Safety are civil officers within article
XVI, section 40. Article 4413(g). section (2),
V.T.C.S., prohitits them from campaigning for
election to a partisan political office or holding
such an office.
Very t uly yours,
J A
JIM MATTOX
Attorney General of Texas
JACK RIGHTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
p. 2631
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Mr. James B. Adam - Page 4 (JM-588)
.
RICK GILPIN
Chairman, Opinion Comittee
Prepared by Susan L. Garrism
Assistant Attorney General
p. 2632