Can a Texas constable also serve as a commissioner of an emergency services district?

Plain-English summary

Texas limits how many public offices one person can hold at the same time. Article XVI, section 40 of the Texas Constitution says no one may hold or exercise more than one "civil office of emolument" at once. R. Lowell Thompson, the Criminal District Attorney for Navarro County, asked the Attorney General whether that rule prevents a county constable from also serving as a commissioner of an emergency services district, the local districts that fund and oversee fire and emergency medical services.

The AG broke the rule into its two parts: both positions must be "civil offices," and both must carry an "emolument." The constable side was settled. A prior opinion had already concluded a constable holds a civil office of emolument, the constable is a precinct officer paid on a salary basis, and the request did not dispute that. So the work was on the ESD commissioner.

First, the AG asked whether an ESD commissioner is an "officer" at all, applying the long-standing test of whether the law hands the person some sovereign function of government to exercise for the public, largely independent of others' control. ESD commissioners pass that test. State law gives the district board substantial governmental powers, including imposing and collecting taxes, buying and selling property, hiring staff, entering contracts, borrowing money, and suing and being sued, and the commissioners serve as the district's governing body. A prior opinion had reached the same conclusion that ESD commissioners are public officers.

Second, the AG asked whether the office carries an "emolument," meaning a pecuniary profit, gain, or advantage. Simply being reimbursed for actual expenses is not an emolument, but anything beyond that, including a flat per-meeting payment or a fixed per diem, is. An ESD commissioner is entitled to compensation of up to $50 for each day actually spent performing the duties, up to a cap, on top of reimbursement, or may instead elect a $50 per diem and give up reimbursement. Either way the commissioner receives compensation, so the position is an office of emolument.

Putting the pieces together, the AG concluded that because both a constable and an ESD commissioner hold civil offices of emolument, Article XVI, section 40 bars one person from serving in both at the same time. Having resolved the question under the constitution, the AG did not need to analyze the separate common-law doctrine of incompatibility the request had also raised.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

District Attorney Thompson and Navarro County (as the opinion described it): The opinion answered that Article XVI, section 40 prohibits the same person from serving simultaneously as a constable and an ESD commissioner, and that the constitutional answer made it unnecessary to reach the common-law incompatibility question raised in the request.

Constables (as the opinion described it): The opinion treated a constable as holding a civil office of emolument, a precinct officer paid on a salary basis, a point already settled and not disputed in the request.

Emergency services district commissioners (as the opinion described it): The opinion described an ESD commissioner as a public officer who exercises governmental powers for the district and who holds an office of emolument because the position carries compensation of up to $50 per day of actual service, beyond reimbursement of expenses.

Common questions

Can the same person be a constable and an ESD commissioner in Texas?
No, according to the AG. Article XVI, section 40 of the Texas Constitution forbids holding more than one civil office of emolument at once, and both a constable and an ESD commissioner hold such offices.

Why is an ESD commissioner considered a public officer?
The AG applied the test of whether the law confers a sovereign government function on the person to exercise for the public largely free of others' control. ESD commissioners pass it because they govern a district with powers to tax, contract, buy and sell property, hire staff, and more.

What makes the ESD commissioner position an 'office of emolument'?
The AG explained an emolument is a pecuniary gain beyond reimbursement of actual expenses. An ESD commissioner can receive up to $50 for each day actually spent on duties (or elect a $50 per diem), which is compensation, so the office carries an emolument.

Does the answer depend on how the ESD or the commissioner was chosen?
No. The AG noted in a footnote that the ESD being created by election, or vacancies being filled by the commissioners court, does not change the governmental powers conferred on commissioners or their right to compensation.

Background and statutory framework

Article XVI, section 40(a) bars holding or exercising more than one civil office of emolument at the same time (Tex. Const. art. XVI, § 40(a)). A constable holds such an office, being a precinct officer paid on a salary basis (Tex. Loc. Gov't Code Ann. § 154.001 (West 2008); Tex. Const. art. XVI, § 61(b); Tex. Att'y Gen. Op. No. GA-0540 (2007) at 2).

Whether an ESD commissioner is an officer turns on whether a sovereign function of government is conferred on the person to exercise for the public largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)), a test ESD commissioners meet (Tex. Att'y Gen. Op. No. DM-114 (1992) at 5; Tex. Health & Safety Code Ann. §§ 775.031(a) (West Supp. 2013), 775.034(a)). An emolument is a pecuniary profit, gain, or advantage; reimbursement of actual expenses is not one, but a per-meeting payment or fixed per diem is (State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994); Tex. Att'y Gen. Op. Nos. GA-0540 (2007) at 2, GA-0032 (2003) at 2). An ESD commissioner may receive up to $50 per day of actual service plus reimbursement, or elect a $50 per diem and forgo reimbursement (Tex. Health & Safety Code Ann. § 775.038(a), (b) (West 2010)). Because both offices are civil offices of emolument, the AG found the dual service barred and did not reach the common-law incompatibility doctrine.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40(a) (no more than one civil office of emolument)
• Tex. Const. art. XVI, § 61(b) (constables paid on a salary basis)
• Tex. Loc. Gov't Code Ann. § 154.001 (West 2008) (constable is a precinct officer)
• Tex. Health & Safety Code Ann. § 775.031(a) (West Supp. 2013) (ESD powers)
• Tex. Health & Safety Code Ann. § 775.034(a) (West Supp. 2013) (commissioners are the governing body)
• Tex. Health & Safety Code Ann. § 775.038(a), (b) (West 2010) (commissioner compensation; per diem)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0540 (2007) (constable holds a civil office of emolument; emolument standard)
• Tex. Att'y Gen. Op. No. DM-114 (1992) (ESD commissioners are public officers)
• Tex. Att'y Gen. Op. No. GA-0032 (2003) (flat per-meeting payment or fixed per diem is an emolument)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1036
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1036.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 2, 2014

The Honorable R. Lowell Thompson Opinion No. GA-1036
Criminal District Attorney
Navarro County Courthouse Re: Whether Texas Constitution article XVI,
300 West 3rd Avenue, Suite 203 section 40 prohibits a constable from serving
Corsicana, Texas 75110 as a commissioner of an emergency services
district (RQ-1137-GA)

Dear Mr. Thompson:

You ask whether Texas Constitution article XVI, section 40 prohibits a Navarro County constable from serving as a commissioner of an emergency services district ("ESD").[1] Article XVI, section 40 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). The constitutional dual office holding prohibition applies if both positions (1) qualify as "civil offices," and (2) are entitled to an "emolument." Id. This office has previously determined that a constable holds a civil office of emolument, and your request letter does not question this conclusion. Tex. Att'y Gen. Op. No. GA-0540 (2007) at 2; see also TEX. LOC. GOV'T CODE ANN. § 154.001 (West 2008) (defining a constable as a "precinct officer"); TEX. CONST. art. XVI, § 61(b) (mandating that constables be paid on a salary basis). Instead, you question whether the position of ESD commissioner is also an office of emolument subject to article XVI, section 40. See Request Letter at 2.

To address your question, we first examine whether an ESD commissioner is an "officer" for purposes of article XVI, section 40. The determinative factor distinguishing an "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). This office has previously determined that ESD commissioners meet the Aldine test and are thus public officers. See Tex. Att'y Gen. Op. No. DM-114 (1992) at 5 (noting the various governmental powers conferred upon an ESD board to be exercised for the benefit of the public largely independent of the control of others); see also, e.g., TEX. HEALTH & SAFETY CODE ANN. §§ 775.031(a) (West Supp. 2013) (authorizing a district to acquire and sell real and personal property; appoint officers, agents, and employees; sue and be sued; impose and collect taxes; exercise certain specific powers relevant to emergency services; enter into contracts; borrow money; and perform other necessary acts), 775.034(a) (providing that commissioners serve as the district's governing body).

Next we determine whether an ESD commissioner holds an office of "emolument." An emolument is "a pecuniary profit, gain or advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994). While the reimbursement of actual expenses does not constitute an emolument, any amount received in excess of actual expenses is an emolument. Tex. Att'y Gen. Op. No. GA-0540 (2007) at 2. Likewise, an amount received as a flat payment per meeting or a fixed per diem allowance is also an emolument. Tex. Att'y Gen. Op. No. GA-0032 (2003) at 2. An ESD commissioner "is entitled to receive compensation of not more than $50 per day for each day the commissioner actually spends performing the duties of a commissioner" up to a maximum amount, and additionally "may be reimbursed for reasonable and necessary expenses incurred in performing official duties." TEX. HEALTH & SAFETY CODE ANN. § 775.038(a) (West 2010). In lieu of this arrangement, "a commissioner may elect to receive per diem compensation of $50 for each day the commissioner actually spends performing the duties of a commissioner" up to a maximum amount, although by doing so, a commissioner forfeits any reimbursement for reasonable and necessary expenses. Id. § 775.038(b). Under either scenario, an ESD commissioner receives compensation for his or her services and thus holds an office of emolument.[2]

Because a constable also holds a civil office of emolument, article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously serving as a constable and a commissioner of an emergency services district. Because we conclude that article XVI, section 40 prohibits the dual service about which you ask, we need not consider your question under the common-law doctrine of incompatibility. See Request Letter at 2 (referencing the common-law standard of incompatibility).

SUMMARY

Article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously serving as a constable and a commissioner of an emergency services district.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable R. Lowell Thompson, Navarro Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (July 23, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You express concern that the creation of an ESD by virtue of an election and the fact that vacancies on the ESD board are filled by appointment of the commissioners court may affect whether a Navarro County ESD commissioner holds a civil office of emolument. Request Letter at 2. However, neither of these facts alters the sovereign functions of government conferred by statute on ESD commissioners or their right to compensation.