Does a Texas deputy constable have to live in the precinct where he works?

Texas AG Opinion JC-0148: Whether a Deputy Constable Must Reside in His Precinct

Plain-English summary

The Trinity County Attorney asked whether a deputy constable has to live in the precinct for which he was appointed. The Attorney General concluded that no statute or constitutional provision required it.

The Election Code sets a residency requirement, but only for people who hold elective office; a deputy constable is appointed, not elected, so that rule did not reach him. The Texas Constitution, in article XVI, section 14, does require "civil officers" to reside within their districts or counties on pain of vacating the office. The opinion reasoned that a deputy constable, though a peace officer, ordinarily works under the direction and control of the constable, which makes him a public employee rather than a public officer. The office had already taken that view of peace officers under a related constitutional provision (article XVI, section 40), and a Texas court had said much the same about an assistant district attorney. Because article XVI, section 14, applies to officers and not to employees, it imposed no residency qualification on a deputy constable.

Currency note

This opinion was issued in 1999. 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.

Common questions

Did any statute force a deputy constable to live in his precinct?
No. The opinion said the Election Code's residency requirement applied only to elective offices and that no statute imposed a residency qualification on a deputy constable, who is appointed rather than elected.

What about the constitutional rule requiring officers to live in their districts?
Article XVI, section 14, of the Texas Constitution requires civil officers to reside within their districts or counties and says failure vacates the office. The Attorney General concluded a deputy constable is not the kind of "civil officer" that provision reaches.

Why was a deputy constable treated as an employee rather than an officer?
The opinion noted that a deputy constable is a peace officer who, under ordinary circumstances, performs his duties under the direction and control of the constable. The office had previously concluded that a peace officer does not, as a matter of law, hold a civil office for purposes of a related constitutional provision, and it applied similar reasoning here.

Did any court decision support that conclusion?
Yes. The opinion cited Powell v. State, where the court held that an assistant district attorney, who acts subject to the district attorney's control and supervision, "is not a public officer, but rather a public employee," so the constitutional residency provisions did not apply. The Attorney General said a deputy constable likewise acts under the constable's control.

Background and statutory framework

The Election Code, at section 141.001(a)(5), establishes a residency requirement for elective offices but does not impose one on positions that are not elective; the opinion relied on that limit and on Attorney General Opinion M-308 (1968).

Article XVI, section 14, of the Texas Constitution provides that "[a]ll civil officers shall reside within the State; and all district or county officers within their districts or counties," and that failure to comply vacates the office. A deputy constable is a peace officer under article 2.12(2) of the Code of Criminal Procedure. Drawing on Opinion DM-212 (1993) and Letter Opinions LO-95-048 and LO-93-027, the office had concluded that a peace officer working under another's direction and control does not hold a civil office for purposes of article XVI, section 40, and it read the term "civil office" in article XVI, section 14, the same way.

The opinion reinforced its conclusion with Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994), in which the court held that an assistant district attorney, acting under the control and supervision of the district attorney, was a public employee rather than a public officer, so the constitutional residency provisions did not apply.

Citations

Statutes and constitutional provisions:

• Tex. Elec. Code Ann. § 141.001(a)(5) (Vernon 1986)
• Tex. Const. art. XVI, § 14
• Tex. Const. art. XVI, § 40
• Tex. Code Crim. Proc. Ann. art. 2.12(2) (Vernon Supp. 1999)

Case:

• Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994)

Prior Attorney General opinions discussed: M-308 (1968); DM-212 (1993); LO-95-048; LO-93-027.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0148
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0148.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS

JOHN CORNYN

December 8, 1999

The Honorable Joe Warner Bell
Trinity County Attorney
P.O. Box 979
Groveton, Texas 75845

Opinion No. JC-0148

Re: Whether a deputy constable is required to reside in the precinct for which he was appointed (RQ-0091-JC)

Dear Mr. Bell:

You have requested our opinion as to whether a deputy constable is required to reside in the precinct for which he was appointed. We conclude that no statute or constitutional provision compels a deputy constable to reside within the jurisdiction he serves.

The Election Code establishes a residency requirement for those who hold elective offices, see TEX. ELEC. CODE ANN. § 141.001(a)(5) (Vernon 1986), but it does not impose a residency qualification for any position other than an elective office. Tex. Att'y Gen. Op. No. M-308 (1968) at 4. No statute requires a deputy constable to reside within his precinct.

Article XVI, section 14, of the Texas Constitution, provides:

All civil officers shall reside within the State; and all district or county officers within their districts or counties, and shall keep their offices at such places as may be required by law; and failure to comply with this condition shall vacate the office so held.

A deputy constable is a peace officer. TEX. CODE CRIM. PROC. ANN. art. 2.12(2) (Vernon Supp. 1999). Since 1993, this office has said that a peace officer does not as a matter of law hold a civil office of emolument for purposes of article XVI, section 40, of the Texas Constitution. Tex. Att'y Gen. Op. No. DM-212 (1993) at 6. Furthermore, under ordinary circumstances, a peace officer such as a deputy constable performs his duties under the direction and control of others and hence, does not hold an office. Tex. Att'y Gen. LO-95-048, at 1-2; LO-93-027, at 1. We believe it is reasonable to conclude that the term "civil office" for purposes of article XVI, section 14, should be construed in a manner similar to that of article XVI, section 40, and that, as a result, the residency requirement of article XVI, section 14, does not apply to a deputy constable.

In Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994), the defendant argued that an assistant district attorney who was appointed as a special prosecutor should have been disqualified because, inter alia, he did not reside within the county or district in which he prosecuted the case. The court held:

An assistant district attorney acts subject to the control and supervision of the district attorney. In our view, an assistant district attorney is not a public officer, but rather a public employee. Therefore, the constitutional provisions cited by appellant are inapplicable to the facts of the case.

Id. at 824. In our opinion, a deputy constable likewise "acts subject to the control and supervision of the" constable, and "is not a public officer, but rather a public employee." Consequently, article XVI, section 14, does not impose a residency qualification on an individual who holds the position of deputy constable. We conclude that a deputy constable is not required to reside in the precinct for which he was appointed.

SUMMARY

A deputy constable is not required to reside in the precinct for which he was appointed.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee