Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 10, 2015
The Honorable Anna D. Hord Opinion No. KP-0032
Hockley County Attorney
802 Houston, Suite 211 Re: Whether an independent school district
Levelland, Texas 79336 police chief may simultaneously serve as a
constable in the precinct in which the school
district is located (RQ-0012-KP)
Dear Ms. Hord:
You tell us that the school district chief of police has submitted his name to the county
commissioners court for appointment to a vacant constable position for the precinct that serves the
school district. 1 Concerned that the two positions might be incompatible, you ask whether the
chief of police of an independent school district may simultaneously hold the office of constable
in the precinct in which the school district is located. Request Letter at 1.
Incompatibility of office derives from the Texas Constitution and the common law. Article
XVI, section 40 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. This prohibition
applies if both positions are civil offices that are 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. We presume that both positions about which you ask
are compensated, so we consider the nature of the two positions.
For purposes of article XVI, section 40, a "civil office" is a "public office." See Tilley v.
Rogers, 405 S.W.2d 220, 224 (Tex. Civ . App.-Beaumont 1966, writ refd n.r.e.) ("We see no
difference in the meaning of public office and civil office."); see also Tex. Att'y Gen. Op. Nos.
GA-0214 (2004) at 2, JM-480 (1986) at 1, MW-415 (1981) at 1-2. A public officer is one upon
whom "any sovereign function of the government" has been conferred "to be exercised by him for
the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v.
Standley, 280 S.W.2d 578, 583 (Tex. 1955). The A/dine analysis involves a determination of
whether the actions and decisions of the officer are subject to the control of others, and whether
the employment may be terminated at will by a superior body: It cannot be said that an officer
1
See Letter from Honorable Anna D. Hord, Hockley Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen.
at I (Feb. 9, 2015), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Anna D. Hord - Page 2 (KP-0032)
subject to such control exercises authority "largely independent of the control of others." Id. at
583; see also Tex. Att'y Gen. Op. Nos. GA-0688 (2009) at 2, GA-0393 (2006) at 3.
Relevant here, opinions from this office have already addressed the nature of both of the
positions about which you ask. We have consistently determined that the office of constable is a
public office within the scope of article XVI, section 40. See Tex. Att'y Gen. Op. Nos. GA-0540
(2007) at 2, GA-0402 (2006) at 1. Moreover, we have previously determined that the office of a
school district police chief is not a public office to which article XVI, section 40 applies because
the school district police chief answers to, and is subject to the control of, the school board and the
superintendent. See Tex. Att'y Gen. Op. No. GA-0688 (2009) at 2; TEX. Eouc. CODE ANN.
§ 37.081(a), (e), (f) (West Supp. 2014) (detailing that the scope of a peace officer's duties are
established by the independent school district's board of trustees and providing that that chief of
police "shall be accountable to the superintendent and shall report to the superintendent"); see also
Tex. Att'y Gen. Op. No. DM-212 (1993) at 2, 5. Accordingly, a school district police chief is not
prohibited by the constitution from simultaneously holding the office of constable in the precinct
in which the school district is located.
The common-law doctrine of incompatibility has three aspects: self-appointment, self-
employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-1083 (2014) at 2. Because
neither office involved here hires, employs, or supervises the other, the dispositive issue involves
the conflicting-loyalties aspect. See Tex. Att'y Gen. Op. No. GA-0688 (2009) at 1. Yet, as with
article XVI, section 40, conflicting-loyalties incompatibility applies only when the two positions
are both officers under the Aldine analysis. See Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3.
The fact that a school district chief of police is not a public officer warrants the same conclusion
with respect to conflicting-loyalties incompatibility: The school district police chief is not
prohibited from simultaneously serving as a constable in the school district's precinct. 2
2As a practical matter, the commissioners court, in appointing this individual to fill the constable vacancy,
must determine whether the duties the individual must perform as a school district's police chief will impact his or
her ability to adequately serve as constable. See generally Tex. Att'y Gen. Op. No. GA-0569 (2007) at 3.
The Honorable Anna D. Hord - Page 3 (KP-0032)
SUMMARY
Neither the Texas Constitution nor the common-law doctrine
of incompatibility prohibits an independent school district police
chief from simultaneously serving as a constable in the precinct in
which the school district is located.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee