Can a Texas DPS officer serve on a school board, city council, or other local governing body?

Texas AG Opinion JM-588: DPS Officers in Local Office

Plain-English summary

JM-588 concluded that commissioned Texas Department of Public Safety officers were civil officers under article XVI, section 40 of the Texas Constitution. A compensated DPS officer therefore could not hold a second civil office that also carried compensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

An unpaid local office presented a different question. Article XVI, section 40 did not itself prohibit a compensated DPS officer from holding a second office with no emoluments. The opinion gave an independent school district trustee as an example of an unpaid office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

The opinion then applied the department's separate political-activity statute. Because commissioned DPS officers were state officers, they did not fall within the constitutional protection for state employees "who are not State officers." JM-588 concluded that article 4413(g), section (2), prohibited a DPS officer from campaigning for or holding a partisan local-government office. Even when neither of those rules decided the question, common-law incompatibility or the Texas Constitution's separation-of-powers provision could still bar a particular combination of offices. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

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.

Common questions

Could a commissioned DPS officer hold a second paid public office?

No. JM-588 said compensated DPS officers were civil officers and could not hold a second civil office of emolument under article XVI, section 40. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

Did article XVI, section 40 bar every unpaid local office?

No. The opinion said that provision did not prohibit a compensated officer from holding a second office to which no emoluments attached. It used an independent school district trustee as an example of an unpaid office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

Could a DPS officer run for a partisan city or school-district office?

JM-588 concluded that article 4413(g), section (2), prohibited DPS personnel from campaigning for or holding a partisan local-government office. The opinion reasoned that commissioned DPS officers were state officers, so the constitutional protection for state employees who were not state officers did not cover them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

Could other dual-office rules still prevent local service?

Yes. The opinion said a particular combination of offices could also be barred by common-law incompatibility or by the separation-of-powers rule in article II, section 1 of the Texas Constitution. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

Background and statutory framework

Article XVI, section 40 contained two rules relevant to the request. It barred one person from holding more than one civil office of emolument, and it protected state employees who were not state officers from being barred from unpaid service on specified local governing bodies. JM-588 treated commissioned DPS officers as state civil officers, relying on Attorney General Opinion H-1027 and authorities describing commissioned peace officers as public or civil officers. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

The department's political-activity statute separately provided that department personnel could not contribute money for political purposes, engage in political activities, or campaign for or against a candidate for public office. The opinion read that law together with article XVI, section 40 and concluded that the constitutional employee protection did not override the statutory ban for commissioned DPS officers because they were state officers. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

Citations and references

Constitutional and statutory authorities:

• Tex. Const. art. XVI, § 40 (dual civil offices of emolument and unpaid local governing-body service by qualifying state employees)
• Tex. Const. art. XVI, § 1 (oath of office)
• Tex. Const. art. II, § 1 (separation of powers)
• Code Crim. Proc. art. 2.12 (peace officers)
• V.T.C.S. art. 6701d-11, § 16; arts. 4413(11), 4413(12) (DPS officer powers and oath provisions discussed in the opinion)
• Educ. Code § 23.19(e) (school trustees served without emoluments)
• V.T.C.S. art. 4413(g), § (2); art. 6252-9f, § 5 (political-activity restrictions)

Cases:

• Sawyer v. City of San Antonio, 234 S.W.2d 398, 401 (Tex. 1950)
• Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944)
• Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927)

Attorney General materials:

• Attorney General Opinions H-1027 (1977), V-229 (1947), MW-149 (1980), M-1099 (1972), M-659 (1975), JM-203 (1984), and JM-141 (1984)
• Letter Advisory No. 63 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0588
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0588.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative. The three reported case citations were checked against legal-research records.

December 22, 1986

Mr. James B. Adams
Director
Texas Department of Public Safety
P. O. Box 4087
Austin, Texas 78773

Opinion No. JM-588

Re: Whether article XVI, section 40 of the Texas Constitution prohibits DPS officers from serving as members of the governing bodies of school districts, cities, towns, or other local governmental bodies

Dear Mr. Adams:

You ask whether article XVI, section 40, of the Texas Constitution prohibits commissioned Department of Public Safety [DPS] officers from serving on the governing bodies of school districts, cities, towns, or other local governmental districts. Article XVI, section 40, provides in part:

Sec. 40. No person shall hold or exercise at the same time, more than one civil office of emolument. . . .

. . . .

State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies. (Emphasis added).

Attorney General Opinion H-1027 (1977) considered whether commissioned officers of the Department of Public Safety were "appointed officers" required to take the constitutional oath of office. See Tex. Const. art. XVI, § 1. The opinion concluded that DPS officers were appointed officers who were required to take the oath, reasoning as follows:

Rangers and officers commissioned by the Director of the Department of Public Safety are specifically designated as "peace officers" by article 2.12 of the Code of Criminal Procedure. Policemen have been described by the Supreme Court of Texas as "public officers," Sawyer v. City of San Antonio, 234 S.W.2d 398, 401 (Tex. 1950). We have also concluded that "a policeman occupies a civil office." Letter Advisory No. 63 (1973) at 2. We believe that officers commissioned by the Department of Public Safety likewise hold a "public office" and a "civil office" and must, therefore, take the constitutional oath of office before entering upon their duties. Indeed, officers of the Highway Patrol Division of the Department of Public Safety are statutorily required to take the oath. V.T.C.S. art. 6701d-11, § 16. See V.T.C.S. art. 4413(12).

Section (4) of article 4413(11) states that officers of the Texas Rangers "shall be clothed with all the powers of peace officers, and shall aid in the execution of the laws." Officers of the Highway Patrol Division are "clothed with all the powers and authority which is . . . given to members of Texas Ranger force." V.T.C.S. art. 4413(12), § (4). See also Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944) (city policeman and deputy sheriff are officers); Attorney General Opinion V-229 (1947) (members of state highway patrol are officers).

We conclude that compensated DPS officers are subject to article XVI, section 40, of the Texas Constitution, and may not hold a second civil office of emolument.

A compensated officer is not prohibited by article XVI, section 40 from holding a second office to which no emoluments attach. See, e.g., Educ. Code § 23.19(e) (trustees of independent school district do not receive emoluments). The personnel of your agency are, however, also subject to a statutory prohibition on political activity:

No person in the Department shall contribute any money or other thing of value for political purposes, nor shall any person in the Department engage in political activities or campaign for or against any candidate for any public office in this state. Any person violating any provision of this subsection shall forfeit his position with the Department.

V.T.C.S. art. 4413(g), § (2). See V.T.C.S. art. 6252-9f, § 5. This provision forbids DPS personnel from engaging in partisan political activities, including campaigning for an elected office. Attorney General Opinion MW-149 (1980); see Attorney General Opinion M-1099 (1972). The following provision of article XVI, section 40 overrides article 4413(g), section (2) with respect to DPS employees:

State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies.

Article XVI, section 40 protects a state employee from dismissal on the ground that he is a candidate for one of specified local offices or holds such an office. Attorney General Opinion MW-149 (1980); Attorney General Opinion M-659 (1975). Department of Public Safety Officers are not, however, covered by the quoted constitutional provision. Article 4413(g), section (2) would prohibit a DPS officer from running for or holding a partisan office in local government.

Particular instances of dual office holding may also be barred by the common law doctrine of incompatibility or by the separation of powers doctrine embodied in article II, section 1, of the Texas Constitution. See Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927); Attorney General Opinions JM-203, JM-141 (1984).

SUMMARY

Commissioned officers of the Department of Public Safety are civil officers within article XVI, section 40. Article 4413(g), section (2), V.T.C.S., prohibits them from campaigning for election to a partisan political office or holding such an office.

Very truly yours,

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