Could one person serve at the same time as a Texas constable and a school board trustee?

Texas AG Opinion JM-519: Constable and School Trustee

Plain-English summary

A Texas House committee chair asked whether one person could serve concurrently as a school-board member and as a constable, whether the person reached the constable's office by appointment or election. The AG analyzed the state constitution's ban on holding two paid civil offices, separation of powers, and the common-law rule against incompatible offices. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

JM-519 concluded in 1986 that the two offices could be held together. A school trustee served without compensation under Education Code section 23.19(e), so the trustee position was not an office of emolument for article XVI, section 40. The opinion also found no reason that a constable's judicial-branch functions would interfere with a trustee's school-governance functions, particularly because the offices belonged to different political subdivisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

The AG likewise found no common-law incompatibility. School trustees exclusively managed the district's public schools, while constables exercised legislatively assigned peace-officer duties. Neither office supervised the other, and the opinion found no inherent conflict between their functions. A constable still had to account for article XVI, section 65: becoming a candidate for school trustee with more than one year left in the constable's term would automatically resign the constable's office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

The official Texas AG landing page now identifies JM-519 as overruled to the extent it conflicts with GA-0328. GA-0328 held that a county sheriff could not simultaneously serve as a school trustee in a district located in the same county where the sheriff was the primary law-enforcement official, and its summary expressly overruled JM-519 to the extent of conflict. Sources: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0519 and https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0328

Currency note

This opinion was issued in 1986. 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 official source identifies later adverse treatment. JM-519's compatibility conclusion must be read together with GA-0328 and any still-later authority. Sources: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0519 and https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0328

Common questions

Did article XVI, section 40 bar the two offices?

No, under the law discussed in 1986. That provision barred one person from holding two civil offices of emolument, but the opinion stated that Education Code section 23.19(e) made school trustees unpaid, so the trustee position was not an office of emolument. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

Did separation of powers prevent the combination?

No. The AG treated a constable as part of the judicial branch and a school trustee as probably part of the executive branch, but found no interference between their functions and no excessive concentration of power from serving two different political subdivisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

Were the offices incompatible at common law?

JM-519 said no. Incompatibility arose when duties conflicted or one office was subordinate to the other. The opinion found that managing a school district and performing constable peace-officer duties were not inherently inconsistent, and relied on similar authority involving a deputy sheriff and a school trustee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

Could a sitting constable run for school trustee without losing the constable's office?

Not always. JM-519 stated that article XVI, section 65 automatically resigned a constable who announced for or became a school-trustee candidate while more than one year remained in the constable's term. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

Is JM-519 still reliable?

The official landing page says it was overruled to the extent of conflict with GA-0328. That later opinion involved a sheriff and found conflicting loyalties where the sheriff's office had a close, frequent law-enforcement relationship with the school district. Any use of JM-519 requires checking how later authority applies to the specific offices and facts. Sources: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0519 and https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0328

Background and statutory framework

JM-519 used the three-part framework common in Texas dual-office questions. It asked whether article XVI, section 40 prohibited two civil offices of emolument, whether article II, section 1 created a separation-of-powers bar, and whether the common-law doctrine of incompatible offices prevented one person from holding both positions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

On compensation, the opinion relied on Education Code section 23.19(e) and Attorney General Opinion V-834 to conclude that school trustees served without compensation. On separation of powers, it relied chiefly on Turner v. Trinity Independent School District Board of Trustees, which allowed a justice of the peace to serve as a school trustee because the two functions did not interfere. JM-519 applied the same reasoning to a constable under article V, section 18. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

On incompatibility, the opinion stated the rule from Thomas v. Abernathy County Line Independent School District and State ex rel. Brennan v. Martin: one person could not hold two offices when their duties conflicted or one was subordinate to the other. Education Code section 23.26(b) placed school management with the trustees, while the Code of Criminal Procedure assigned constables peace-officer powers. JM-519 found those functions compatible, drawing support from Attorney General Opinion O-3308 and State ex rel. Walker v. Bus, which addressed a deputy sheriff serving as a school trustee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

GA-0328 later took a different view where a sheriff served as the primary law-enforcement official for a school district in an unincorporated area. It found the sheriff's relationship with the district sufficiently close and frequent to create conflicting loyalties, and overruled Opinions O-3308 and JM-519 to the extent of conflict. Source: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0328

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

Constitutional and statutory provisions:

• Tex. Const. art. XVI, §§ 40, 65; art. II, § 1; art. V, § 18
• Education Code §§ 23.19(e), 23.26(b)
• Code Crim. Proc. arts. 2.12-2.16; 14.01-14.06; 15.01; 15.15-15.18

Cases:

• Turner v. Trinity Independent School District Board of Trustees, 700 S.W.2d 1 (Tex. App. - Houston [14th Dist.] 1983, no writ)
• Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi 1976, no writ)
• Coates v. Windham, 613 S.W.2d 572 (Tex. Civ. App. - Austin 1981, no writ)
• Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• State ex rel. Brennan v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ)
• State ex rel. Walker v. Bus, 36 S.W. 636 (Mo. 1896)
• Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.)

The opinion also cited Attorney General Opinions V-834 (1949), JM-203, JM-141 (1984), JM-129 (1983), O-3308 (1941), and Letter Advisory No. 114 (1975).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0519
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0519.pdf

Original opinion text

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

The Attorney General of Texas

July 11, 1986

JIM MATTOX
Attorney General

Honorable Lloyd Criss
Chairman
Labor and Employment Relations Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-519

Re: Whether an individual may serve as both constable and member of a school board

Dear Representative Criss:

You ask whether an individual may serve concurrently as a member of a school board and as a constable, whether appointed or elected to the position of constable.

In answering questions about the holding of two offices by one person, this office has generally considered the following issues:

1. Whether this instance of dual office holding is prohibited by article XVI, section 40 of the Texas Constitution, which bars one person from holding two civil offices of emolument;

2. Whether it is prohibited by article II, section 1 of the Texas Constitution, which provides for the separation of powers;

3. Whether the common law doctrine of incompatible offices prevents one person from holding both offices.

Article XVI, section 40, of the Texas Constitution provides in part:

No person shall hold or exercise at the same time, more than one civil office of emolument, except. . . .

Tex. Const. art. XVI, section 40. Section 23.19(e) of the Education Code provides that school trustees serve without compensation; thus, the office of school trustee is not a civil office of emolument. Attorney General Opinion V-834 (1949). Article XVI, section 40, of the Texas Constitution does not bar a school trustee from serving as a constable.

Article II, section 1, of the Texas Constitution provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

The case of Turner v. Trinity Independent School District Board of Trustees, 700 S.W.2d 1 (Tex. App. - Houston [14th Dist.] 1983, no writ) is instructive on the application of this provision to cases of dual office holding. The Turner v. Trinity Independent School District case determined that a school trustee was not prohibited from simultaneously holding the office of justice of the peace. It discussed the effect of article II, section 1, of the Texas Constitution as follows:

The policy behind Article 2, § 1, is to prohibit one branch of government from interfering with functions constitutionally committed to other branches of government. See Ruiz v. State, 540 S.W.2d 809, 812 (Tex. Civ. App. - Corpus Christi 1976, no writ). While we agree that a Justice of the Peace is a member of the Judicial branch of government and a trustee of an independent school district probably is a member of the Executive branch, we find nothing to persuade us that Chandler's functions as Justice of the Peace have interfered with or will interfere with his functions as a member of the Board.

700 S.W.2d at 2.

A constable is also a member of the judicial branch. Tex. Const. art. V, § 18. We see no basis for concluding that an individual's functions as constable would interfere with his functions as a member of the school board. Nor do we believe that the individual's service in an executive branch office of one political subdivision and a judicial branch office of another political subdivision involves the excessive concentration of power which article II, section 1, was designed to prevent. See generally Coates v. Windham, 613 S.W.2d 572 (Tex. Civ. App. - Austin 1981, no writ).

The common law doctrine of incompatibility prevents one person from holding two offices if the duties are inconsistent or in conflict, or if one office is subordinate to the other. Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); State ex rel. Brennan v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ). See Attorney General Opinions JM-203; JM-141 (1984); JM-129 (1983); Letter Advisory No. 114 (1975).

The trustees of an independent school district "have the exclusive power to manage and govern the public free schools of the district." Educ. Code § 23.26(b). A constable is a peace officer with the law enforcement powers and duties determined by the legislature. See, e.g., Code Crim. Proc. arts. 2.12-2.16; 14.01-14.06; 15.01, 15.15-15.18. The Supreme Court of Missouri, in deciding that the office of deputy sheriff was not incompatible with that of school board member, stated as follows:

At common law the only limit to the number of offices one person might hold was that they should be compatible and consistent. The incompatibility does not consist in a physical inability of one person to discharge the duties of the two offices, but there must be some inconsistency in the functions of the two, some conflict in the duties required of the officers, as where one has some supervision of the others, is required to deal with, control, or assist him. . . . Sheriffs are given power, and it is made their duty, to preserve the peace, arrest, and commit to jail all felons and traitors, execute all process, and attend upon courts of record. The board of directors of the St. Louis public school has charge, control, and management of the public schools, and of all the property appropriated to the use of the public schools within said city. We are unable to discover the least incompatibility or inconsistency in the public functions of these two offices, or where they could by possibility come in conflict or antagonism, unless the deputy sheriff should be required to serve process upon a director as such. We do not think such a remote contingency sufficient to create an incompatibility. The functions of the two offices should be inherently inconsistent and repugnant. . . .

State ex rel. Walker v. Bus, 36 S.W. 636, 639-40 (Mo. 1896).

A prior opinion of this office also found that the office of deputy sheriff is not incompatible with the office of school trustee of a common school district. Attorney General Opinion O-3308 (1941) stated as follows:

We have carefully considered the respective duties of a deputy sheriff and of a school trustee of a common school district and we have been unable to find where any of the duties falling upon a holder of each respective office would necessarily be inconsistent with or incompatible with the duties of a person holding the other office. Neither do we find any corresponding duties of either of said offices which would necessarily unduly influence the duties imposed by law upon the holder of the other office.

The constable has many duties in common with the sheriff and deputy sheriff. See Code Crim. Proc. arts. 2.12-2.16; 14.01-14.06; 15.01; 15.15-15.18. We believe that the quotations from Attorney General Opinion O-3308 and the Supreme Court of Missouri also describe the relationship between the offices of constable and school trustee under Texas law. The two offices are not incompatible, and the duties thereof may be performed by the same person. See generally Turner v. Trinity Independent School District, 700 S.W.2d 1 (Tex. App. - Houston [14th Dist.] 1983, no writ); State ex rel. Brennan v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ).

We conclude that an individual is not prevented from serving concurrently as a school board member and a constable by article II, section 1 or article XVI, section 40, of the Texas Constitution or by the common law doctrine of incompatibility. We point out, however, that constables are subject to article XVI, section 65 of the Texas Constitution. Therefore, if a constable announces his candidacy or becomes a candidate for the office of school trustee when his unexpired term as constable exceeds one year, he thereby automatically resigns the office of constable. Tex. Const. art. XVI, § 65; see Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.).

SUMMARY

One person is not prohibited from concurrently holding the offices of constable and school trustee by article II, section 1 of the Texas Constitution, article XVI, section 40, of the Texas Constitution, or the common law doctrine of incompatibility.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General