Can the same person be a county deputy constable and an assistant fire chief at the City of Houston at the same time in Texas?

Plain-English summary

The Harris County Attorney asked whether one person could hold two government jobs at once: deputy constable for the county and assistant fire chief for the City of Houston. Two legal rules can block dual government service. One is the Texas Constitution's article XVI, section 40, which says no person may hold more than one "civil office of emolument" at the same time. The other is the common-law doctrine of incompatibility, which keeps a person from holding two offices when one could end up controlling or imposing its policies on the other. Both rules share a threshold requirement: they apply only when the positions in question are public offices. If one of the two is merely a job (an employment) rather than an office, neither rule is triggered.

So the analysis came down to classifying each position. The constitutional ban reaches only salaried positions, and both jobs here are salaried, so each is a position "of emolument." The harder part was whether each is a "civil office." Texas uses the test from the Supreme Court's Aldine decision: a public officer, unlike an ordinary employee, is given a sovereign function of government to exercise for the public, largely independent of the control of others. A deputy constable clears that bar easily. Statutes create and empower the position, a deputy may perform all the acts a constable can perform, and the courts have held a deputy constable is vested with part of the government's sovereign functions. The deputy constable is therefore a public officer, and the position is a civil office of emolument.

The assistant fire chief was the closer call, and it came out the other way. Both state law and the Houston City Code shape the job. An assistant chief does carry some real authority: a designated assistant chief steps in with the chief's full authority when the chief is absent or disabled, and assistant chiefs have police power at fires. But the decisive feature is supervision. The Houston City Code and the job descriptions for every assistant fire chief position make clear that the fire chief directly controls and supervises the assistant chiefs, who perform the duties the chief lawfully assigns. Because the assistant chief acts under the chief's direct control, the assistant chief does not exercise a sovereign function "largely independent of the control of others." That makes the assistant fire chief an employee, not an officer.

With one position an office and the other an employment, both blocking rules dropped out. Article XVI, section 40 bars holding two civil offices of emolument, and here there was only one office. The common-law incompatibility doctrine applies only to two offices, so it did not reach an office-plus-employment combination either. The Attorney General concluded that the same person may serve as a county deputy constable and a City of Houston assistant fire chief at the same time.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Local Government Code provisions and the Houston City Code sections cited here, and the population thresholds in chapter 143, may have changed since 1992, so confirm current law before relying on anything described here.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution provides: "No person shall hold or exercise at the same time, more than one civil office of emolument." Section 40 applies only to persons who profit monetarily from their office. Both the deputy constable position and the assistant fire chief position are salaried, so both are positions "of emolument." The question was whether both are "civil offices." To determine whether a position is a "civil office" for purposes of section 40, the test is the definition of "public officer" the Texas Supreme Court articulated in Aldine Independent School District v. Standley, 280 S.W.2d 578, 582-85 (Tex. 1955): a public officer, unlike an employee, exercises a sovereign function largely independent of the control of others for the public benefit. Id. at 583 (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston 1949, writ ref'd)). The essential elements of public office are the authority to exercise governmental power for the public's benefit and independence from the control of other governmental entities or officials.

Under Local Government Code section 86.011(a), a county constable may appoint a deputy constable with the approval of the commissioners court, and the deputy must qualify by taking the official oath in the same manner as a deputy sheriff. Local Gov't Code §§ 85.003(b), 86.011(b). The appointing official may terminate the deputy at will, id. §§ 85.003(c), 86.011(b), and deputy constables may perform all acts and duties the constable is authorized to perform, id. §§ 85.003(d), 86.011(b). The Texas Supreme Court has held that a deputy constable is legally vested with some portion of the government's sovereign functions, to be exercised for the public benefit, and is therefore a public officer. Rich v. Graybar Elec. Co., 84 S.W.2d 708, 709 (Tex. 1935) (quoting Murray v. State, 67 S.W.2d 274 (Ct. Crim. App. 1933)). The deputy constable position is thus a civil office of emolument.

Whether the assistant fire chief position is also a civil office of emolument was a more difficult question, because both state law and city law provide for the position. The relevant state law is Local Government Code chapter 143, subchapter G, which applies to municipalities with a population greater than 1.5 million (including Houston). Local Gov't Code § 143.101(a). Section 143.102(a) authorizes the head of the fire department to appoint, subject to confirmation by the governing body, a person to a command-staff position at the rank of assistant chief; the department head must establish required qualifications (management experience, education and training, special experience, and a performance evaluation) approved by a two-thirds vote of the governing body, id. § 143.102(b), (k), and may remove a person holding the rank of assistant chief only for cause under the disciplinary procedures of subchapter D, id. § 143.102(g). Home-rule cities may provide for a fire department, id. § 342.011, and Houston is a home-rule city. Section 34-53 of the Houston City Code gives the fire chief full control and supervisory authority over all officers and employees in the department, and section 34-54 creates the assistant chief position as the "second level of command," with the holders assisting the chief by performing such duties as the chief may lawfully direct. An assistant chief has some special authority: section 34-55 lets the chief designate an assistant chief to discharge the chief's duties (with the chief's full authority) during the chief's absence or disability, and section 34-58 gives the chief and the assistants the same police power at fires as city police officers. Despite that special authority, section 34-53 and the job descriptions of all the assistant fire chief positions expressly provide that the fire chief directly controls and supervises the assistant chiefs. Because the fire chief directly supervises an assistant chief's actions, an assistant chief does not exercise "any sovereign function . . . largely independent of the control of others." Aldine, 280 S.W.2d at 583. The assistant fire chief position is therefore not a civil office of emolument but an employment, so article XVI, section 40 does not preclude one person from serving as both deputy constable and assistant fire chief.

On incompatibility, the common-law doctrine prevents a person from holding two offices if one office might impose its policies on the other or subject it to control in some other way. Because the assistant fire chief position is an employment rather than an office, the doctrine does not preclude a deputy constable from also serving as an assistant fire chief.

Common questions

Can a Texas deputy constable also hold a city job at the same time?
It depends on whether the city job is itself a public office. In this opinion the assistant fire chief job was an employment, not an office, so the deputy constable could hold both. If the second position were a public office, the dual-office rules could bar it.

Why is a deputy constable an "officer" but an assistant fire chief only an "employee"?
The opinion applied the Aldine test: an officer exercises sovereign government power largely independent of others' control. A deputy constable does (it can do everything a constable can). A Houston assistant fire chief is directly supervised by the fire chief, so it does not, which makes it an employment.

What does article XVI, section 40 actually prohibit?
It prohibits one person from holding more than one civil office of emolument (a salaried public office) at the same time. The opinion noted it applies only when both positions are offices, which was not the case here.

Did the assistant chief's police power at fires make it an office?
No. The opinion acknowledged assistant chiefs have police power at fires and can stand in for the chief, but concluded the chief's direct supervision was decisive, so the position remained an employment.

Citations

• Tex. Const. art. XVI, § 40
• Local Government Code §§ 85.003(b), (c), (d), 86.011(a), (b), 143.101(a), 143.102(a), (b), (g), (k), 342.011; ch. 143
• Houston City Code §§ 34-53, 34-54, 34-55, 34-58
• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955); Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd); Rich v. Graybar Elec. Co., 84 S.W.2d 708 (Tex. 1935); Murray v. State, 67 S.W.2d 274 (Ct. Crim. App. 1933)
• Attorney General Opinions MW-450, JM-499, JM-485 (1986), JM-1266 (1990), DM-55 (1991); Letter Advisory No. 31 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0156
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0156.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; one heavily garbled supporting case name is marked rather than guessed. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 19, 1992

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-156

Re: Whether article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility precludes a deputy constable from simultaneously holding a position as an assistant fire chief with the City of Houston Fire Department (RQ-290)

Dear Mr. Driscoll:

You have asked for our opinion as to whether, under article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility, a deputy constable simultaneously may hold a position as an assistant fire chief with the City of Houston Fire Department. We conclude that neither article XVI, section 40 of the constitution nor the common-law doctrine of incompatibility precludes one person from simultaneously holding both positions.

We first consider whether the Texas Constitution precludes one person from simultaneously holding positions as deputy constable of a county and assistant fire chief of the City of Houston Fire Department. Article XVI, section 40 of the Texas Constitution states: "No person shall hold or exercise at the same time, more than one civil office of emolument." Section 40 applies only to persons who profit monetarily from their office. 2 D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 777 (1977) (citing [case name illegible in scan], 77 S.W.2d 970 (1944)) (citation omitted); see also Attorney General Opinion MW-450 (defining "emolument"). We understand that both positions about which you inquire, the deputy constable position and the assistant fire chief position, are salaried positions. Thus, both are positions "of emolument." We proceed to consider whether both positions are "civil offices" for purposes of article XVI, section 40 of the constitution.

To determine whether a position is a "civil office" for purposes of article XVI, section 40 of the constitution, we must apply the definition of "public officer" that the Texas Supreme Court articulated in Aldine Independent School District v. Standley, 280 S.W.2d 578, 582-85 (Tex. 1955). According to the Aldine court, a public officer, unlike a public employee, exercises a sovereign function largely independent of the control of others for the public benefit. Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston 1949, writ ref'd)); see Attorney General Opinions JM-499 at 4, JM-485 at 1 (1986); Letter Advisory No. 31 (1973) at 2. This distinction recognizes the essential elements of public office: first, the officeholder's authority to exercise governmental power for the benefit of the public; and second, the officeholder's independence from the control of other governmental entities or officials.

Pursuant to section 86.011(a) of the Local Government Code, a county constable may appoint a deputy constable if the constable has received the approval of the county commissioners court. Once approved, the proposed deputy constable must qualify for office in the same manner as a deputy sheriff; that is, the deputy constable must take and subscribe the official oath. Local Gov't Code §§ 85.003(b), 86.011(b). The appointing official may terminate the deputy constable at will. Id. §§ 85.003(c), 86.011(b). Deputy constables may perform all acts and duties that the constable is authorized to perform. Local Gov't Code §§ 85.003(d), 86.011(b); see Bryson v. State, 36 S.W.2d 733, 734 (Ct. Crim. App. 1931). The Texas Supreme Court has held, based on the statutory provisions creating and empowering the position of deputy constable, that a deputy constable is legally vested with some portion of the government's sovereign functions, which functions the deputy constable is to exercise for the benefit of the public; accordingly, the Supreme Court has concluded that the deputy constable of a county is a public officer. Rich v. Graybar Elec. Co., 84 S.W.2d 708, 709 (Tex. 1935) (quoting Murray v. State, 67 S.W.2d 274 (Ct. Crim. App. 1933)). Consequently, the position of deputy constable is a civil office of emolument for purposes of article XVI, section 40 of the constitution.

Whether the position of assistant fire chief with the City of Houston Fire Department also is a civil office of emolument is a more difficult question. While state law creates and empowers the office of deputy constable, both state law and city law provide for the position of assistant fire chief. Thus, we look to applicable sections of the state code as well as Houston's city code to determine whether either vests some portion of the government's sovereign functions with an assistant fire chief and requires the assistant fire chief to exercise those functions for the benefit of the public largely independent of the control of others. If so, of course, the position of assistant fire chief is a civil office of emolument.

We find relevant and applicable provisions of the state code in Local Government Code chapter 143, subchapter G, which applies to municipalities with a population greater than 1.5 million. See Local Gov't Code § 143.101(a). Section 143.102(a) authorizes the head of the fire department of such a municipality to appoint, subject to confirmation by the municipality's governing body (id. § 143.102(k)), a person to a "command staff position at the rank of assistant chief." The head of the fire department must establish required qualifications for persons appointed to the position of assistant chief, which qualifications must include standards relating to management experience, education and training background, special experience, and a performance evaluation. Id. § 143.102(b). The municipality's governing body must approve the qualifications by a vote of two-thirds of the governing body's members present and voting. Id. The head of the fire department may remove a person holding the rank of assistant fire chief only for cause in compliance with the procedures for disciplinary action or demotion articulated in subchapter D of chapter 143. Id. § 143.102(g).

Home rule cities may provide for the creation and operation of a fire department within the city's limits. Id. § 342.011. You have informed us that Houston is a home rule city. Section 34-53 of the City of Houston Code provides the chief of the fire department with full control, supervisory powers, and authority over all officers and employees in the department. Section 34-54 creates the assistant fire chief position:

         The positions of assistant chief of the fire department shall constitute the second level of command within the department, and the holders thereof shall assist the chief of the fire department in the administration of the department by performing such duties as he may lawfully direct.

Houston City Code § 34-54.

We note that, under the City of Houston Code, an assistant fire chief has some special authority. Section 34-55, for example, provides a designated assistant fire chief with special powers in the event of the chief's absence or disability:

          The chief of the fire department shall, from time to time, designate one of the persons holding the rank of assistant chief of the fire department to discharge his duties during any time that the chief may be absent or otherwise unable to perform such duties. The person so designated shall be vested with the full authority of the office of chief of the fire department when acting for the chief in that capacity.

Id. § 34-55. Furthermore, section 34-58 of the City of Houston Code provides assistant fire chiefs with police power at all fires:

         The chief of the fire department and each of his assistants and all officers thereof shall have the same police power at all fires as the police officers of the city have. Any person refusing to comply with any reasonable orders given by the chief of the fire department, or any official in the fire department, shall be deemed guilty of a misdemeanor.

Id. § 34-58. Despite the special authority granted assistant fire chiefs, section 34-53 of the Houston City Code and job descriptions of all the assistant fire chief positions with the City of Houston Fire Department expressly provide that the fire chief is to directly control and supervise the assistant fire chiefs. See also id. § 34-54 (requiring each assistant fire chief to perform those duties that fire chief lawfully directs). The fact that the fire chief directly supervises an assistant fire chief's actions requires us to conclude that an assistant fire chief does not exercise "any sovereign function . . . largely independent of the control of others." See Aldine Indep. School Dist. v. Standley, 280 S.W.2d at 583. Accordingly, we believe that the position of assistant fire chief with the City of Houston Fire Department is not a civil office of emolument, but rather an employment (see Attorney General Opinion JM-1266 (1990) at 2). Therefore, article XVI, section 40 of the Texas Constitution does not preclude one person from simultaneously serving as deputy constable and assistant fire chief in the City of Houston Fire Department.

We next consider whether the common-law doctrine of incompatibility prohibits one person from simultaneously holding both positions. The common-law doctrine of incompatibility prevents a person from holding two offices if one office might impose its policies on the other or subject it to control in some other way. Attorney General Opinion DM-55 (1991) at 1. As we have concluded that the assistant fire chief position with the City of Houston Fire Department is not an office but rather an employment, the common-law doctrine of incompatibility does not preclude a deputy constable from also serving as assistant fire chief. See Attorney General Opinion JM-1266 at 4.

                               SUMMARY

          The position of deputy constable of a county is a civil office of emolument. However, the position of assistant fire chief in the City of Houston Fire Department is not a civil office of emolument. Thus, neither article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility precludes one person from simultaneously serving as deputy constable for a county and assistant fire chief for the City of Houston Fire Department.

                                             DAN MORALES
                                             Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General