Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 5,2005
Colonel Thomas A. Davis Jr. Opinion No. GA-0365
Director
Texas Department of Public Safety Re: Whether a peace officer commissioned by the
5805 North Lamar Boulevard Texas Department of Public Safety is an “appointed
Post Office Box 4087 officer” for purposes of article XVI, section 1 of the
Austin, Texas 78773-0001 Texas Constitution (RQ-03 3 3 -GA)
Dear Colonel Davis:
You request our opinion on whether a “peace officer employed by the Texas Department of
Public Safety [is] an ‘appointed officer’ and a holder of a public office, and therefore required to
comply with Article XVI, Section 1 of the Texas Constitution every two years as required by Article
XVI, Section 30(a).“’ You inform us that, based on a previous opinion in which this office
determined that Texas Department of Public Safety (the “Department” or “DPS”) officers hold a
public office, DPS commissioned officers take the official oath of office every two years. See
Request Letter, supra note 1, at 1.
Article XVI, section 30(a) of the Texas Constitution states that the “duration of all offices
not fixed by this Constitution shall never exceed two years.” TEX. CONST. art. XVI, 3 30. Article
XVI, section 1 provides that all “elected and appointed officers, before they enter upon the duties
of their offices, shall take the following Oath or Affirmation.“* Id. 5 1. DPS officers are not elected.
‘Request Letter from Colonel Thomas A. Davis Jr., Director, Texas Department of Public Safety, to Honorable
Greg Abbott, Texas Attorney General (Mar. 29, 2005) ( on file with Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
2The oath is as follows:
I, , do solemnly swear (or affirm), that I will faithfully execute the duties of the office of
of the State of Texas, and will to the best of my ability preserve, protect, and defend the
Constitution and laws of the United States and of this State, so help me God.
TEX. CONST. art. XVI, $ l(a). Before taking the oath of office, all elected and appointed officers must subscribe to the
following statement:
I, , do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised
to pay, contributed, or promised to contribute any money or thing of value, or promised any public
(continued.. .)
Colonel Thomas A. Davis Jr. - Page 2 (GA-0365)
Instead, they are appointed3 and commissioned.4 The term “appoint” in the Texas Constitution does
not have the same meaning as it does in chapter 411 of the Government Code because the latter’s
usage includes the appointment of employees? See TEX. GOV’T CODE ANN. § 411.007 (Vernon
2005) (“may appoint . . . any officer or employee”). Therefore, we understand your question to
inquire generally whether a DPS commissioned officer is a public officer subject to article XVI,
section 1.
I. LerJal Backwound
In 1955, the Texas Supreme Court in Aldine Independent SchoolDistrict v. Standley adopted
a standard by which to determine whether a person occupying a particular position is a public officer.
See Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (citing Dunbar v.
Brazovia County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston 1949, writ ref d)). Under the
Aldine standard, the “determining factor [that] distinguishes a public officer from an employee is
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 of the control of others.” Id. at 583. The
question before the Aldine Court was whether a position was a public office under article V, section
24 (removal of county officers) or article XVI, section 30 (duration of public office) of the Texas
Constitution. See id. at 580. The constitutional oath of office provision found in article XVI, section
1 was not at issue in Aldine. See generally id. at 578.
Article XVI, section 1 was directly at issue when, in 1977, this office considered the question
of “[wlhether commissioned officers of the Department of Public Safety must take the constitutional
oath of office.” Tex. Att’y Gen. Op. No. H-1027 (1977) at 2-3. Despite having used the Aldine
standard in the context of other constitutional provisions pertaining to public officers, this office
concluded that DPS officers did hold a “public office” under article XVI, section 1 and therefore
were required to take the oath. See id. That conclusion was based not on Aldine but rather on a
statutory provision explicitly requiring DPS officers to take the oath and a Texas Supreme Court
*(...continued)
office or employment for the giving or withholding of a vote at the election at which I was elected or
as a reward to secure my appointment or confirmation, whichever the case may be, so help me God.
Id. 8 l(b).
3The director of public safety “may appoint, promote, reduce, suspend, or discharge any officer or employee
of the department.” TEX. GOV’T CODE ANN. 5 4 11.007(a) (Vernon 2005) (emphasis added).
4“The law enforcement agency that appoints a peace officer ‘commissions’ him thereby giving him the legal
power to act as a peace officer.” Tex. Att’y Gen. Op. No. GA-0214 (2004) at 1 (citing 37 TEX. ADMIN. CODE tj
211.1(a)(6), (14) (2004)). S ee also 37 TEX. ADMIN. CODE 5s 211.1(a)(8) (2005) (defining “appointed” to mean
“[ellected or commissioned by an agency as a peace officer”), 2 11.1 (a)( 15) (defining “commissioned” as “given the legal
power to act as a peace officer or reserve, whether elected, employed, or appointed”).
‘See Tex. Att’y Gen. Op. No. GA-0214 (2004) at 1 n.2 (stating a “statute may describe the person holding a
public position as an ‘officer,’ but that title does not necessarily mean the person holds a public office”) (citing Tex. Att’y
Gen. Op. No. JM-480 (1986) at 3; Tex. Att’y Gen. LO-90-62, at 3).
Colonel Thomas A. Davis Jr. - Page 3 (GA-0365)
opinion describing, without analysis, police officers as “public officers.” See id. at 2 (citing article
6701d-11, section 16 of the Revised Civil Statutes, and Sawyer v. City of San Antonio, 234 S.W.2d
398, 401 (Tex. 1950)). The express statutory requirement that DPS officers take the oath was
repealed in 1995! However, the Sawyer opinion on which H-1027 is partly based has never been
overruled. Neither have other early opinions stating the general proposition that police officers are
public officers. See, e.g., Yett v. Cook, 281 S.W. 837 (Tex. 1926); Irwin v. State, 177 S.W.2d 970
(Tex. Crim. App. 1944); Ex Parte Preston, 161 S.W. 115 (Tex. Crim. App. 1913).
However, when asked whether city police officers were public officers within the meaning
of article XVI, section 40 (dual office holding), this office recognized that “Texas courts would no
longer follow” the general principle from old cases that a police officer is a public officer and used
the Aldine standard to determine that city police officers and sheriffs deputies did not as a matter
of law “hold civil7 offices [within the meaning ofJ article XVI, section 40.” Tex. Att’y Gen. Op. No.
DM-2 12 (1993) at 1,5-6. Attorney General Opinion DM-2 12 concluded that the question depended
on application of the Aldine standard to the relevant facts and could not be answered in the opinion
process. See id. at 6.
Article XVI, section 1 was the context of a 1996 opinion from this office that revisited the
issue of peace officers as public officers. See Tex. Att’y Gen. Op. No. DM-381 (1996). Attorney
General Opinion DM-38 1 affirmed DM-2 12, which concluded that city police officers were not
as a matter of law public officers within article XVI, section 40 (dual office holding). See id. at 2.
DM-38 1 recognized the Aldine standard but noted that the early judicial opinions on which it had
been based had never been overturned and had relied on Code of Criminal Procedure provisions to
conclude that city police officers are public officers. See id. at 2-3. Those Code of Criminal
Procedure provisions list peace officer positions and provide that peace officers are included within
the general term of officers. See id. at 3; see also TEX. CODE GRIM. PROC. ANN. arts. 2.12, 3.03
(Vernon 2005). Because of a lack of judicial guidance on whether Texas courts would rely on the
Code of Criminal Procedure provisions or Aldine to decide the public officer question under article
XVI, section 1, this office in DM-381 advised that city police officers should “err on the side of
caution, and [] assume that a police officer must take the oath.” Tex. Att’y Gen. Op. No. DM-38 1
(1996) at 8. Now you ask us to consider the question again with respect to DPS commissioned
officers and article XVI, section 1. See Request Letter, supra note 1, at 1.
II. Analysis
When DM-381 was written, this office did not believe there was sufficient judicial guidance
on whether the Aldine standard was the pertinent standard for determining whether an officer was
6See Act of May 1, 1995,74th Leg., R.S., ch. 165, $ 24(a), 1995 Tex. Gen. Laws 1025, 1871 (effective Sept.
1, 1995).
7There is no longer any distinction between a civil office and a public office. See TiZZeyv. Rogers, 405 S.W.2d
220,224 (Tex. Civ. App.-Beaumont 1966, writ ref d 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 1, JM-480 (1986) at 1, MW-4 15 (198 1) at 2 (term
“civil office” used interchangeably with “public office”).
Colonel Thomas A. Davis Jr. - Page 4 (GA-0365)
a public officer under article XVI, section 1. See Tex. Att’y Gen. Op. No. DM-38 1 (1996) at 3.
Subsequent judicial decisions and attorney general opinions, however, have developed the question
further.
A. Applicable Standard
The Aldine case examined the question of a public officer in the context of article V,
section 24 (removal of county officers) and article XVI, section 30 (duration of public office). See
AZdine, 280 S.W.2d at 580. Subsequently, the Aldine standard has been applied to other
constitutional provisions concerning officers and offices. It has been used to determine whether an
office was a public office under article XVI, section 40 of the Texas Constitution (dual office
holding).8 See, e.g., State ex. rel. Hill v. Pirtle, 887 S.W.2d 921,931 (Tex. Crim. App. 1994). The
standard in Aldine has been used to decide whether a position was a public office under article IV,
section 12 (vacancies in state or district offices),’ article XVI, section 14 (residence of civil
officers),1o and article XVI, section 6 1 (compensation of officers),” and article II, section 1
(separation of powers). I2 The Aldine standard was used to determine whether a position was a public
office under provisions in the Texas Election Code,13 the Civil Service Act,14 and the Nepotism
Statute. I5
We find no judicial decision prior to Attorney General Opinion DM-38 1 utilizing the Aldine
standard to decide specifically whether a person holding a position was a public officer under article
XVI, section 1, the provision at issue here. However, since DM-38 1 two courts have utilized the
Aldine standard to consider whether a person was a public officer within the scope of article XVI,
section 1.
In Prieto Bail Bonds v. Texas, the El Paso Court of Appeals was asked to determine whether
a senior judge was an appointed officer required to take the article XVI, section 1 oath. See Prieto
Bail Bonds v. Tex., 994 S.W.2d 3 16,3 18-20 (Tex. App.-El Paso 1999, pet. ref d). In considering
* See also Tilley, 405 S.W.2d at 224; Tex. Att’y Gen. Op. Nos. GA-0250 (2004) at 2, JM-485 (1986) at 1-2,
MW-39 (1979) at l-2.
‘See Tex. Att’y Gen. Op. No. JC-0345 (2001) at 2.
“See Powell v. State, 898 S.W.2d 821, 824 (Tex, Crim. App. 1994).
“See Harris County v. Schoenbacher, 594 S.W.2d 106, 109 (Tex. Civ. App.-Houston [lst Dist.] 1979, writ
ref’d n.r.e.).
‘2Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no writ).
13See Stelzer v. Huddleston, 526 S.W.2d 710, 714 (Tex. Civ. App.-Tyler 1975, writ dism’d).
14See Green v. Stewart, 516 S.W.2d 133, 135 (Tex. 1974).
“See Pena v. Rio Grande City Consol. Indep. Sch. Disk, 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland
1981, no writ).
Colonel Thomas A. Davis Jr. - Page 5 (GA-0365)
the question, the court looked to the Aldine standard and determined that the authorization to
“pronounce judgment and to adjudicate the rights of parties . . . [is] a sovereign function.” Id. at 320.
Based on its analysis under AZdine, the court concluded that senior judges are public officers. See
id.
In a more recent case, it was alleged that because of their authority to “prosecute, interrogate
children in secret, [and] remove children from their homes,” caseworkers of the Texas Department
of Protective and Regulatory Services were public officers required to take the constitutional oath.
See Alvarez v. Tex. Dep’t of Protective & Regulatory Svcs., No. 03-02-00008-CV, 2002 WI
3 1599225 at * 1 (Tex. App.-Austin, Nov. 21, 2002) (not designated for publication). The
unpublished opinion of the Austin Court of Appeals utilized the Aldine standard to determine that
the caseworkers were not public officers under article XVI, section 1. See id. Though unpublished
and without precedential value, the court’s recent use of the Aldine test to consider the public officer
question under article XVI, section 1 is consistent with the Prieto opinion.
In addition to these judicial opinions using the Aldine standard to examine the public officer
question in the precise context of article XVI, section 1, this office has issued numerous opinions
using the Aldine test in many different contexts. In Attorney General Opinion JC-0562, this office
said that the “test in Texas for whether one is an officer is whether one exercises ‘any sovereign
function of the government . . . for the benefit of the public largely independent of the control of
others. “’ Tex. Att’y Gen. Op. No. JC-0562 (2002) at 2 (citing Aldine Indep. Sch. Dist., 280 S.W.2d
at 583). Opinion JC-0562 construed “public officer” in the context of article XI, section 1 and article
XVI, section 65 (term of office; automatic resignation) of the Texas Constitution. See id. In
Attorney General Opinion GA-02 17, this office was asked whether article XI, section 11 (municipal
term of office) applied to city police officers. See Tex. Att’y Gen. Op. No. GA-0217 (2004) at 2.
The opinion recognized that the Aldine standard was the appropriate test and opined that the
“determination [of) whether a particular police officer holds an office for constitutional purposes
involves questions of fact and cannot be resolved in an attorney general opinion.” Id. at 4. The
Aldine standard was also recently utilized to determine whether members of a water district’s board
of directors were “officers” pursuant to several provisions of the Texas Water Code. See Tex. Att’y
Gen. Op. No. GA-0284 (2004) at 2-3.
Based on the recent use of the AZdine standard by a court of appeals to determine that a
position was a public office under article XVI, section 1, and based on attorney general opinions
utilizing the Aldine standard pursuant to a variety of constitutional and statutory provisions, we
believe that sufficient guidance now exists to support the conclusion that the Aldine standard is the
definitive test by which to determine whether a particular position is a public office for purposes of
article XVI, section 1. Pursuant to this conclusion, we overrule Attorney General Opinions H-l 027
(1977) and DM-3 8 1 (1996) to the extent they are inconsistent with this opinion.
B. DPS Commissioned Officers
To determine whether a particular position is a public office, we look to the statutory
and constitutional provisions governing the position to determine “whether any sovereign function
Colonel Thomas A. Davis Jr. - Page 6 (GA-0365)
of the government is conferred upon the individual to be exercised by [the person] for the benefit of
the public largely independent of the control of others.” Aldine Indep. Sch. Dist., 280 S.W.2d at 583.
Moreover, this office has consistently said since 1993 that with respect to peace officers that “[the
Aldine] test must be applied on a case-by-case basis and raises questions of fact that cannot be
resolved in the opinion process.” Tex. Att’y Gen. Op. No. GA-0214 (2004) at 3; see also Tex. Att’y
Gen. Op. Nos. GA-021 7 (2004) at 4, GA-0021 (2003) at 5, DM-212 (1993) at 2.
YOU inform US that all DPS officers below the rank of colonel are subject to the control
and supervision of the Public Safety Commission and the Director of the DPS through their chain
of command. See Request Letter, supra note 1, at 3. However, we find no definitive statute
or administrative rule regarding the precise job duties and chain of command structure. The
Department by rule has listed fourteen major infractions that serve as “sufficient cause for the
discharge . . . of any member of the department of public safety.” 37 TEX. ADMIN. CODE. 8 1.114(b)
(2005). We note that the Texas Government Code authorizes the Director of the Department of
Public Safety to “discharge any officer or employee of the department” for just cause. See TEX.
GOV’T CODE ANN. 8 411.007(a), (e) (V emon 2005). We believe that a DPS commissioned officer,
who would be subject to discharge for one of these infractions or otherwise for just cause, does not
therefore act “largely independent of the control of others.“16 Pursuant to prior opinions of this
office, the question is a fact question for the Department to resolve. If the facts reveal that the
specific officers about whom you inquire are subject to discharge by the director, they are not public
officers required to take the oath of office under article XVI, section 1 of the Texas Constitution.
16We do not mean to imply here that a DPS commissioned officer not subject to discharge for one of the listed
infractions is necessarily a public officer. Ultimately, the question of whether a particular position is a public office is
a fact question.
Colonel Thomas A. Davis Jr. - Page 7 (GA-0365)
SUMMARY
In the context of article V, section 24 and article XVI, section
30 of the Texas Constitution, the Texas Supreme Court in Aldine
Independent School District v. Standley established a standard by
which to determine whether an individual holds a public office. That
standard asks 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 of the control of others.”
The Aldine standard is also the appropriate standard by which
to determine, under article XVI, section 1 of the Texas Constitution,
whether a particular position is a public office. We therefore overrule
Attorney General Opinions H- 1027 (1977) and DM-3 8 l(l996) to the
extent they conflict with this opinion.
If the officers in question are subject to discharge by the
Director of the Department of Public Safety, they are not public
officers subject to article XVI, section 1 of the Texas Constitution.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee