Can someone serve as an elected constable and a city firefighter at the same time in Texas?

Plain-English summary

The Texas Commission on Law Enforcement Officer Standards-Education, writing on behalf of the City of Marshall Police Department, asked whether an elected constable may simultaneously serve as a municipal firefighter. A Marshall firefighter had won a primary election for constable and intended to keep his firefighting job while holding the constable office. The Attorney General concluded he may do both.

The opinion worked through the law of dual office holding. The constitutional branch (article XVI, section 40 of the Texas Constitution) bars holding two "offices of emolument," but it did not apply because a municipal firefighter does not hold a public office, a point settled since DM-212 (1993). The other branch is common-law incompatibility, which the courts split into two kinds. The first, from Ehlinger v. Clark, bars a person from appointing himself to another position, later extended to "self-employment" (so a city employee cannot also sit on the same city's council). That did not apply here because a constable is elected and a firefighter is appointed by municipal officers, so neither self-appointment nor self-employment was involved.

The second kind, "conflicting loyalties" incompatibility (from Thomas v. Abernathy County Line Independent School District), prevents one person from holding two offices where one might control or impose its policies on the other. But both the controlling cases and a line of attorney general opinions hold that conflicting-loyalties incompatibility applies only when both positions are "offices." Because a firefighter's position is employment, not an office, the doctrine did not bar the dual service. The opinion rejected the city's arguments that a Court of Criminal Appeals case (Pirtle) and the 1972 "state employee" proviso to article XVI, section 40 changed this. It added an important caveat: the absence of a legal bar is not a guarantee of dual employment. If the City of Marshall has a rule requiring approval of outside employment and finds the firefighter cannot satisfactorily perform the firefighting job while serving as constable, it may act accordingly, a position supported by Dudley v. Angel.

Currency note

This opinion was issued in 2000. 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

Cities and fire departments (what the opinion held for them): The opinion held that incompatibility does not bar a firefighter from also serving as an elected constable, but that a city with an outside-employment approval rule may still act if it finds the employee cannot satisfactorily perform the firefighting job while serving as constable.

Constables and other elected officers (what the opinion held for them): The opinion held that an elected constable may simultaneously hold a municipal firefighter position, because the conflicting-loyalties doctrine applies only when both positions are offices and a firefighter's post is employment.

The Law Enforcement Standards Commission (what the opinion held for it): The opinion answered that the common-law incompatibility doctrine does not prohibit the simultaneous service the Commission asked about.

Common questions

Can a city firefighter also be an elected constable in Texas?
The opinion concluded yes. Neither the constitutional dual-office ban nor common-law incompatibility prohibits it, because a firefighter does not hold a public office.

Why doesn't the conflicting-loyalties rule block this?
The opinion explained that conflicting-loyalties incompatibility applies only when both positions are "offices," and a firefighter's job is employment, not an office.

Could the city still stop the firefighter from doing both?
The opinion concluded that the absence of a legal bar is not a guarantee of dual employment; a city with an outside-employment approval rule may act if it finds the employee cannot satisfactorily perform the firefighting duties.

Does the constitutional ban on holding two offices apply?
No. The opinion concluded article XVI, section 40 was not applicable because a municipal firefighter does not hold a public office.

Background and statutory framework

Dual office holding has a constitutional branch and a common-law branch. Article XVI, section 40 of the Texas Constitution bars simultaneously holding two offices of emolument; the opinion found it inapplicable because, since DM-212 (1993), a municipal firefighter has not been treated as holding a public office. Common-law incompatibility has two kinds. The self-appointment branch (Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)), extended to self-employment in 1977, did not apply because a constable is elected and a firefighter appointed. The conflicting-loyalties branch (Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); Turner v. Trinity Independent School District, 700 S.W.2d 1 (Tex. App.—Houston [14th Dist.] 1983, no writ)) applies only where both positions are offices, as a line of opinions including JC-0054 (1999) and JM-1266 (1990) holds.

The opinion addressed the City of Marshall's challenge to DM-156 (1992), which had allowed a deputy constable to serve as an assistant fire chief because that post is employment. It read State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 929 (Tex. Crim. App. 1994) (en banc) as not disturbing the "both must be offices" principle, and concluded the 1972 "state employee" proviso to article XVI, section 40 was not meant to bear on the incompatibility doctrine. It noted that even where no incompatibility exists, an employer may regulate outside employment, citing Dudley v. Angel, 209 F.3d 460 (5th Cir. 2000), so the City of Marshall could enforce an outside-employment approval rule if the firefighter could not perform the job.

Citations

Constitutional provision:

• Tex. Const. art. XVI, § 40

Cases and prior opinions:

• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Turner v. Trinity Independent School District, 700 S.W.2d 1 (Tex. App.—Houston [14th Dist.] 1983, no writ)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994) (en banc)
• Dudley v. Angel, 209 F.3d 460 (5th Cir. 2000)
• Tex. Att'y Gen. Op. Nos. DM-55 (1991), DM-156 (1992), DM-212 (1993), DM-311 (1994), JC-0054 (1999), JM-93 (1983), JM-203 (1984), JM-1266 (1990), LA-114 (1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0270
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0270.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

August 16, 2000

D.C. Jim Dozier, J.D., Ph.D.
Executive Director
Texas Commission on Law Enforcement Officer Standards-Education
6330 U.S. Highway 290 East, Suite 200
Austin, Texas 78723

Opinion No. JC-0270

Re: Whether an elected constable may simultaneously serve as a municipal fire fighter (RQ-0206-JC)

Dear Dr. Dozier:

On behalf of the City of Marshall Police Department, you have requested our opinion as to whether an elected constable may simultaneously serve as a municipal fire fighter. For the reasons indicated below, we conclude that he may do so.

A letter accompanying your request explains that a fire fighter employed by the City of Marshall "has won election in the Democratic primary to the office of constable. This civil servant has advised others in the department that he does not intend to resign his job with the fire department upon assuming office, and instead, intends to occupy both positions simultaneously." Request Letter.[1]

The doctrine of dual office holding comes into play when one individual holds two or more positions at the same time. One aspect of the doctrine is constitutional, and relates primarily to article XVI, section 40 of the Texas Constitution. That provision proscribes the simultaneous holding of two "offices of emolument." You do not suggest that it is applicable here. Indeed, at least since Attorney General Opinion DM-212 (1993), it has been clear that a municipal fire fighter does not hold a "public office." See also Tex. Att'y Gen. LO-95-048, 93-027.

The other branch of dual office holding is the doctrine of common-law incompatibility. The courts have in turn recognized two kinds of incompatibility. One, derived from Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928), prohibits an individual from appointing himself to another position. In 1977, the attorney general extended this doctrine to situations of "self-employment," so that, for example, a municipal employee may not also serve as a council member of the same city. See Tex. Att'y Gen. LA-114 (1977); see also Tex. Att'y Gen. LO-97-034, 90-045, 89-002. Since a constable is elected, and a municipal fire fighter is appointed by officers of the municipal government, neither "self-appointment" nor "self-employment" incompatibility is applicable to the situation you pose.

The other judicially-based aspect of incompatibility was first recognized in Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). That opinion held that the offices of school trustee and city alderman were incompatible, because, if both were held by a single individual, one office might impose its policies on the other or subject it to control in some other way. See Tex. Att'y Gen. Op. No. DM-55 (1991). The attorney general has denominated this branch of incompatibility "conflicting loyalties." See, e.g., Tex. Att'y Gen. Op. Nos. DM-311 (1994), JM-1266 (1990); Tex. Att'y Gen. LO-95-029. It is this aspect of the doctrine that you seek to invoke in the present instance.

Thomas, 290 S.W. 152, and Turner v. Trinity Independent School District, 700 S.W.2d 1 (Tex. App.—Houston [14th Dist.] 1983, no writ), the only judicial decisions to deal directly with conflicting loyalties incompatibility, specifically involve situations in which both positions are "offices." Furthermore, a line of attorney general opinions, since at least 1990, has held that, for the conflicting loyalties doctrine to be applicable, both positions must be "offices." See Tex. Att'y Gen. Op. Nos. JC-0054 (1999), JM-1266 (1990); Tex. Att'y Gen. LO-96-148, 052, 95-029, 93-027. Thus, it is now well established that "conflicting loyalties" incompatibility does not prohibit an individual from holding two positions where one of those positions does not constitute an "office."

The City of Marshall Police Department specifically takes issue with Attorney General Opinion DM-156, wherein this office found that, since the position of "assistant fire chief" 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." Tex. Att'y Gen. Op. No. DM-156 (1992) at 5. A brief from the City of Marshall contends that, for two reasons, this conclusion is incorrect. We will respond to each of these arguments in turn.

The brief first notes that, in State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994) (en banc), the Court of Criminal Appeals "analyzed the question of whether or not the common-law doctrine of incompatibility barred an Assistant Attorney General from serving as an Assistant District Attorney," which it asserts indicates that the court in that case had accepted the argument that conflicting loyalties incompatibility could apply to the two positions. Key Brief.[2] We disagree. The court actually said: "Assuming arguendo that the incompatibility doctrine applies to a person serving as an assistant attorney general, we fail to see how such an 'office' conflicts with the position of assistant district attorney." Pirtle, 887 S.W.2d at 929. In our opinion, the court in Pirtle did not intend to call into question the principle that conflicting loyalties incompatibility applies only when both positions are "offices."

The brief next contends that the "state employee" proviso, added to article XVI, section 40, of the Texas Constitution in 1972, was intended to relieve state employees from the effect of common-law incompatibility, and that therefore the doctrine of incompatibility applies to all other public employees. Key Brief, supra note 2, at 2. This proviso declares that state employees and others who receive all or part of their compensation from state funds, and who are not state officers, shall not be barred from serving as members of the governing bodies of local governmental districts, but shall receive no salary for doing so. TEX. CONST. art. XVI, § 40. Although it is strange that this provision was inserted into a constitutional provision that otherwise relates strictly to "officers," there is no evidence that its adoption was intended to have any implications for the incompatibility doctrine. Indeed, this office has since 1977 held that the proviso is not sufficient to overcome self-employment incompatibility. See Tex. Att'y Gen. LA-114 (1977). As has been noted, the "state employee" proviso means simply that article XVI, section 40 may not be used to prohibit dual service for persons affected by its terms. Tex. Att'y Gen. LO-96-109. And even though a dual office holding situation may be permitted under article XVI, section 40, opinions of this office conclude that it may yet run afoul of incompatibility. See Tex. Att'y Gen. Op. No. JM-203 (1984); Tex. Att'y Gen. LO-96-004.

Finally, the brief urges that the duties of constable will frequently "conflict" with the duties of a municipal fire fighter. Key Brief, supra, note 2, at 2-3. As we have said, this office has consistently held that conflicting loyalties incompatibility is not applicable when, as here, one position is not an "office." But the mere absence of common-law incompatibility as a legal bar to dual employment is not a legal guarantee of dual employment. In Attorney General Letter Opinion 96-109, two employees of Stephen F. Austin State University had received their parties' nomination for the offices of county commissioner and constable. The university was concerned that the employees would not be able successfully to fill both their elective offices and their university positions. This office concluded that a rule of the university requiring executive approval for all outside employment was valid on its face, and that the university could evaluate whether outside employment as a public officer violated the policy. This position was affirmed in Dudley v. Angel, 209 F.3d 460 (5th Cir. 2000); see also Tex. Att'y Gen. Op. No. JM-93 (1983). Likewise, in the situation you describe, if the City of Marshall has a rule requiring approval of outside employment and finds that its fire fighter is unable satisfactorily to fulfill the duties of the position of municipal fire fighter while serving in the office of constable, it may act accordingly.

SUMMARY

The common-law doctrine of incompatibility does not bar an individual from simultaneously serving as an elected constable and a municipal fire fighter.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee

[1] Letter from Charles W. Williams, Chief of Police, City of Marshall, to Dr. Jim Dozier, Executive Director, Texas Commission on Law Enforcement Standards-Education (Mar. 15, 2000) (on file with Opinion Committee).

[2] Brief from Thomas W. Key, Assistant City Attorney, City of Marshall, to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General (Apr. 26, 2000) (on file with Opinion Committee).