Can a Texas elected constable also work full-time as a deputy sheriff at the same time?

TX AG Opinion GA-0402: Can an elected constable also be a full-time deputy sheriff?

Plain-English summary

The Fannin County attorney asked whether someone elected constable could, at the same time, hold a full-time job as a deputy sheriff. The Attorney General concluded nothing in the Texas Constitution, the common law, or statute forbids it.

The starting point was article XVI, section 40 of the Texas Constitution, which bars a person from holding more than one civil "office of emolument" at once. The key word is "office." Texas courts distinguish an officer, someone on whom a sovereign function of government is conferred to exercise largely independent of others' control, from a mere employee. A constable is an elected official and holds an office. A deputy sheriff is not an officer, because the deputy serves at the pleasure of the sheriff. So the dual-office ban did not reach the combination, since only one of the two positions is an office.

The opinion then considered the common-law doctrine of incompatibility, which has three branches: self-appointment, self-employment, and conflicting loyalties. The first two did not apply because neither a constable nor a deputy sheriff appoints or employs the other. The conflicting-loyalties branch, which a 1927 Texas decision established for two offices that clash, also requires that each position be an office. Because a deputy sheriff is not an office, that branch did not bar holding both. The opinion found no statute prohibiting a sheriff from employing an elected constable as a deputy, or barring a constable from serving as a deputy. It cautioned, though, that its conclusion did not address practical problems like being unable to be in two places at once, or local rules and policies that may limit a peace officer's outside employment, which a person in this situation would need to check separately.

Currency note

This opinion was issued in 2006. 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 constitutional dual-office provision and the case law defining an "office" are long-standing, but the Local Government Code chapters on sheriffs and constables have been amended since 2006, and local policies on outside employment vary and change. Anyone weighing this combination today should confirm the current statutes and check the applicable county rules.

Who this opinion affected (as of 2006)

Elected constables and deputy sheriffs: The opinion told them that holding both positions at once was not barred by the constitutional dual-office rule or by the incompatibility doctrine.

Sheriffs: It confirmed no statute barred a sheriff from employing an elected constable as a deputy.

Counties setting employment policy: It flagged that local rules, ordinances, or policies limiting a peace officer's additional employment were outside the opinion's scope and could still restrict the arrangement.

Common questions

Is a deputy sheriff a public officer in Texas?
No, for this purpose. The opinion explained a deputy sheriff serves at the pleasure of the sheriff and so is an employee, not an officer, unlike an elected constable.

Why does that matter for holding two positions?
Both the constitutional dual-office ban and the conflicting-loyalties form of incompatibility apply only when each position is an "office." Since a deputy sheriff is not an office, neither rule blocked the combination.

Does any statute forbid a constable from being a deputy sheriff?
The opinion found none, in either the sheriff chapter or the constable chapter of the Local Government Code.

So there are no limits at all?
Not quite. The opinion noted it did not address practical limits like being in two places at once, and that local rules or policies could restrict a peace officer's outside employment, which must be checked separately.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution bars holding more than one civil office of emolument at the same time (Tex. Const. art. XVI, § 40). Whether a position is an office turns on whether a sovereign function of government is conferred on the person to exercise largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)). A constable is elected from each precinct and holds an office (Tex. Const. art. V, § 18(a)), while a deputy sheriff serves at the pleasure of the sheriff and is not an officer (Tex. Loc. Gov't Code Ann. § 85.003(c) (Vernon 1999)). The conflicting-loyalties branch of the common-law incompatibility doctrine applies only where each position is an office (Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)). The opinion found no statute barring the combination in the chapters governing sheriffs and constables (Tex. Loc. Gov't Code Ann. §§ 85.001-.023, 86.001-.025 (Vernon 1999 & Supp. 2005)).

Citations

Statutes:

• Tex. Const. art. XVI, § 40; art. V, § 18(a)
• Tex. Loc. Gov't Code Ann. § 85.003(c) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 85.001-.023, 86.001-.025 (Vernon 1999 & Supp. 2005)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0402
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0402.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 22, 2006

The Honorable Richard E. Glaser
County and District Attorney, Fannin County
101 East Sam Rayburn Drive, Suite 301
Bonham, Texas 75418

Opinion No. GA-0402

Re: Whether an elected constable is prohibited from simultaneously serving as a full-time deputy sheriff (RQ-0383-GA)

Dear Mr. Glaser:

You ask whether an elected constable is prohibited from simultaneously serving as a full-time deputy sheriff.[1]

Article XVI, section 40 of the Texas Constitution provides in relevant part that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument . . . ." TEX. CONST. art. XVI, § 40. The Texas Supreme Court has long held that "the determining factor which 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." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). A constable is an elected official and clearly holds his position largely independent of the control of others. See TEX. CONST. art. V, § 18(a) (constable shall be elected from each precinct). A deputy sheriff, on the other hand, is not an officer because he "serves at the pleasure of the sheriff." TEX. LOC. GOV'T CODE ANN. § 85.003(c) (Vernon 1999). Thus, because a deputy sheriff does not hold an office, he is not prohibited by article XVI, section 40 from simultaneously serving as an elected constable.

We must also consider the common-law doctrine of incompatibility, which has three aspects: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0328 (2005) at 1. The first two are not applicable here because neither a constable nor a deputy sheriff appoints or employs the other. It is the third aspect of incompatibility, conflicting loyalties, that is implicated by your inquiry. This doctrine was first promulgated by a Texas court in a 1927 case wherein the court found the offices of school trustee and city alderman to be incompatible. See Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted).

The clear holding of Thomas is that in order for conflicting loyalties incompatibility to be applicable to a particular situation, each position must constitute an "office." See id. at 152-53; see also Tex. Att'y Gen. Op. Nos. GA-0214 (2004) at 3-4; GA-0127 (2003) at 3. Because we have determined that a deputy sheriff does not hold an office, he is not barred by conflicting loyalties incompatibility from simultaneously holding the office of constable.

We have found no statute that prohibits a sheriff from employing an elected constable such as the sheriff's deputy, nor any statute that prohibits an elected constable from simultaneously serving as a deputy sheriff. See generally TEX. LOC. GOV'T CODE ANN. §§ 85.001-.023 (Vernon 1999 & Supp. 2005) (chapter 85 concerning sheriffs); id. §§ 86.001-.025 (chapter 86 concerning constables).

Neither the common-law doctrine of incompatibility nor article XVI, section 40, however, reaches the practical difficulties involved in holding two positions, for example, the impossibility of being in two places at once. See Tex. Att'y Gen. Op. Nos. GA-0214 (2004), at 4; JM-819 (1987) at 6; V-303 (1947) at 2. Moreover, as we observed in Attorney General Opinion GA-0214, an individual peace officer may be subject to "rules, ordinances, or policies that limit additional employments." Tex. Att'y Gen. Op. No. GA-0214 (2004) at 4. Accordingly, "a peace officer who is considering a second employment must also consult such provisions for additional restrictions on outside employment." Id.

We conclude that an elected constable is not prohibited by article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as a deputy sheriff.

SUMMARY

An elected constable is not prohibited by article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as a deputy sheriff.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Richard E. Glaser, County and District Attorney, Fannin County, to Honorable Greg Abbott, Attorney General of Texas (Aug. 18, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].