Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 20, 2007
The Honorable Marsha Monroe Opinion No. GA-0569
Terrell County Attorney
Post Office Box 745 Re: Whether certain county officers and employees
Sanderson, Texas 79848 may hold additional county positions
(RQ-0580-GA)
Dear Ms. Monroe:
You ask whether certain county officers and employees may hold additional county positions.
You first ask whether ajustice ofthe peace may simultaneously serve as a county emergency medical
services employee. 1 Both the Texas Constitution and the common-law doctrine of incompatibility
restrict dual office holding. We examine each in tum.
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(a).
Justices ofthe peace are expressly excepted from the operation ofthis constitutional provision. See
id. Thus, article XVI, section 40 does not bar ajustice of the peace from simultaneously serving as
a county emergency medical services employee.
Irrespective of the constitutional prohibition, the common-law doctrine of incompatibility
may also serve as an impediment to the simultaneous holding of two positions. That doctrine has
three aspects: (1) self-appointment; (2) self-employment; and (3) conflicting loyalties. See Tex.
Att'y Gen. Ope No. GA-0536 (2007) at 3. Neither self-appointment nor self-employment is
applicable to the situation you pose. It is the commissioners court, not the justice of the peace, that
governs the appointment or employment ofan emergency medical services employee. See Tex. Att'y
Gen. LO-94-046, at 2 (explaining that in a county with no emergency services district, "the county
commissioners court itself governs the county emergency medical or ambulance service"). Neither
does an emergency medical services employee appoint or employ a justice ofthe peace, which is an
elected office. See TEX. CONST. art. V, § 18 Gustice of the peace is an elected official).
lLetter from Honorable Marsha Monroe, Terrell County Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (Apr. 2, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Marsha Monroe - Page 2 (GA-0569)
The third aspect of incompatibility-eonflicting loyalties-occurs only when each position
is an "office." See Tex. Att'y Gen. Opt No. GA-0536 (2007) at 3. A person is an "officer" if "any
sovereign function of government is conferred upon the individual 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). Under the standard of Aldine, it is clear that a county
emergency medical services employee, ultimately subject to the direction and control of the
commissioners court, does not hold an office. Thus, conflicting loyalties incompatibility does not
bar a justice of the peace from simultaneously serving as a county emergency medical services
employee.
Even though no legal incompatibility exists, conflict may still arise between the duties ofthe
two positions. For example, in a county without a medical examiner's office, a justice ofthe peace
may have the duty to perform an inquest into the death of a person. See TEX. CODE CRIM. PROC.
ANN. arts. 49.02, .04 (Vernon 2006). Inquests may involve review of actions taken by emergency
medical staff. See, e.g., Tex. Att'y Gen. LO-97-033, at 1 (relating to ajustice of the peace seeking
access to ambulance "run sheets" in connection with a death investigation). Additionally, there may
be other circumstances in which the jurisdiction of the justice court brings the justice of the peace
in contact with emergency medical personnel and the emergency medical services division. To that
end, we note that the Code of Judicial Conduct and other ethical considerations may be implicated
by the dual service at issue here. See, e.g., TEX. CODE JUD. CONDUCT, Canon 4A(1 )-(2), reprinted
in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005) (providing that extra-judicial,
activities should not: "(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
or (2) interfere with the proper performance ofjudicial duties"); ide Canon 4D( 1) ("A judge shall
refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality,
interfere with the proper performance of the judicial duties, or involve the judge in frequent
transactions with ... persons likely to come before the court "). The justice of the peace of
whom you inquire may wish to consult with the Texas Commission on Judicial Conduct regarding
this dual service. See TEX. CONST. art. V, § l-a(2), 6(A), (8) (providing that the Commission is
responsible, in the first instance, for applying the judicial canons to specific conduct by judges).
Your second question is whether ajustice ofthe peace holds a full-time position and is thus
eligible for county employee benefits. See Request Letter, supra note 1, at 1. You explain that the
Terrell County Handbook defines "full-time employees" as those employees regularly employed
thirty or more hours per week and that "the Justice of the Peace position has not [historically]
required that the JP work 30 hours per week." Id. at 1-2.
The County Handbook's provisions regarding the benefits bestowed upon full-time
employees are not applicable to ajustice of the peace. A justice of the peace is not an employee of
the county. Rather, the position ofjustice of the peace is an elected office established by the Texas
Constitution. See TEX. CONST. art. V, § 18.
The Honorable Marsha Monroe - Page 3 (GA-0569)
The Texas Constitution requires that justices ofthe peace be compensated on a salary basis.
See ide art. XVI, § 61(b).2 The commissioners court has authority to set the salary and other
compensationforjusticesofthepeace. See TEX. Loc. GOV'TCODEANN. §§ 152.011 (Vernon 1999)
(commissioners court has authority to "set the amount of the compensation, office and travel
expenses, and all other allowances for county and precinct officers ... paid wholly from county
funds"), 152.013(a) ("Each year the commissioners court shall set the salary, expenses, and other
allowances ofelected county or precinct officers."); Tex. Att'y Gen. Ope No. GA-0193 (2004) at 3. 3
We have recognized that the commissioners court, pursuant to section 152.011 of the Local
Government Code, may also confer benefits such as vacation, sick leave, and holidays on county
officers, as part of their compensation. See Tex. Att'y Gen. Ope Nos. GA-0322 (2005) at 3,
GA-0303 (2005) at 2. In carrying out its authority to establish the salary and compensation of a
justice ofthe peace, a commissioners court may not, however, prescribe the office hours ofjustices
ofthe peace as this would intrude upon the powers or duties of an independent county official. See
Tex. Att'y Gen. Ope Nos. GA-0322 (2005) at 3, GA-0303 (2005) at 2.
Your third question is whether one person may simultaneously serve in a contractual position
as director for county emergency medical services and as a full-time dispatcher for the sheriffs
office. See Request Letter, supra note 1, at 1-2. Under the Aldine standard, neither of these
positions constitutes an "office," and thus an individual holding both would not run afoul of either
article XVI, section 40 ofthe Texas Constitution or the conflicting loyalties aspect of common-law
incompatibility. See Tex. Att'y Gen. LO-94-046, at 3 (an EMS administrator is not a public officer);
cf Tex. Att'y Gen. Ope No. GA-0402 (2006) at 1 (a deputy sheriff is not an officer). Neither does
one position appoint or employ the other. Thus, there is no legal bar to a person's holding both of
these positions.
As a practical matter, the commissioners court, as supervisor of the emergency medical
services director, and the sheriff, as supervisor of his dispatcher, must each determine whether the
duties of one position make it impossible for the individual to adequately perform the other. See
Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ denied) (holding that a
sheriff has sole authority over employment and termination decisions concerning sheriff s office
personnel); Tex. Att'y Gen. LO-94-046, at 2 (explaining that in a county with no emergency services
district, "the county commissioners court itselfgoverns the county emergency medical or ambulance
service, pursuant to the common law, section 774.003(a) of the Health and Safety Code, or some
statute other than chapter 776 of the Health and Safety Code of which we are unaware").
2 Justices of the peace also have express statutory authority to retain fees from third parties for performing
services outside those required of the office by law, such as marriage ceremonies. See TEX. Lac. GOV'T CODE ANN. §
154.005(a) (Vernon 1999).
3A county commissioners court has a duty to set a reasonable salary for a duly elected justice ofthe peace. See
Vondy v. Comm'rs Court o/Uvalde County, 620 S.W.2d 104, 108-09 (Tex. 1981).
The Honorable Marsha Monroe - Page 4 (GA-0569)
SUMMARY
A justice of the peace is not barred by either article XVI,
section 40 of the Texas Constitution or the common-law doctrine of
incompatibility from simultaneously serving as a county emergency
medical service employee. The justice of the peace may, however,
wish to consult with the State Commission on Judicial Conduct to
assess whether the Code of Judicial Conduct bars such dual service.
Ajustice ofthe peace is an elected official-not an employee
of the county. The salary and other compensation, such as benefits,
for justices of the peace are set by the commissioners court.
A full-time dispatcher for a county sheriffs office is not
barred by either article XVI, section 40 of the Texas Constitution or
the common-law doctrine of incompatibility from simultaneously
serving in a contractual position as director of county emergency
medical services. Whether one person can, as a practical matter, carry
out both functions must be determined by the sheriff and the
commissioners court as the respective supervisors of the two
positions.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee