Can a Texas constable also serve as a deputy sheriff and enforce truck-weight limits?

Plain-English summary

Liberty County had a constable and a deputy constable who were also commissioned as deputy sheriffs, and the county wanted them to help with truck-weight enforcement. Transportation Code chapter 621 gives "weight-enforcement officers" the exclusive authority to enforce vehicle-weight rules, and the statute lists who may hold that role. The County Attorney asked the AG two things: does being a constable or deputy constable bar someone from also serving under the sheriff, and can a person who wears both hats act as a weight-enforcement officer.

On the dual-service question, the AG looked at the three things that can block a person from holding two government positions. First, no statute prohibits serving as both a constable (or deputy constable) and a deputy sheriff. Second, the Texas Constitution's article XVI, section 40 bars holding more than one civil "office of emolument," but that applies only when both positions are offices; prior AG opinions establish that a deputy sheriff, who serves at the sheriff's direction and pleasure, is not an office for this purpose. Third, the common-law incompatibility doctrine also applies only between two offices, so it does not reach a deputy sheriff either. So nothing prevented the same person from holding both commissions.

On the weight-enforcement question, section 621.401 lists eligible officers, including a sheriff's deputy in subsection (3) and, in subsection (6), a constable or deputy constable only if designated under section 621.4015 (which has narrow population and border requirements that did not fit Liberty County). The AG applied the rule that listing some constables implies the exclusion of others, but also the rule that every part of a statute gets full effect. Because subsection (3) independently authorizes a sheriff's deputy, a person who is both a deputy sheriff and a constable can serve as a weight-enforcement officer in the deputy-sheriff capacity, even though the constable role alone would not qualify.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The Liberty County Attorney and county officials (who requested the opinion): The opinion told them that commissioning a constable or deputy constable as a deputy sheriff did not run afoul of the dual-office ban, any statute, or the incompatibility doctrine, and that such a person could enforce vehicle-weight limits in the deputy-sheriff capacity under section 621.401(3), independent of whether the constable role qualified.

Constables and deputy constables (as the opinion described them): The opinion treated a constable as a constitutional officeholder, but explained that holding that office did not conflict with also serving as a deputy sheriff. It noted that a constable or deputy constable qualifies as a weight-enforcement officer in that role only if designated under section 621.4015, which has specific population and border criteria.

Deputy sheriffs (as the opinion described them): The opinion treated a deputy sheriff as not holding a public office for purposes of the dual-office and incompatibility rules, and as squarely within the list of persons eligible to be weight-enforcement officers under section 621.401(3).

Common questions

Can the same person be a constable and a deputy sheriff in Texas?
The AG concluded yes. No statute prohibits it, the constitutional dual-office ban in article XVI, section 40 does not apply because a deputy sheriff is not an office, and the common-law incompatibility doctrine likewise applies only between two offices.

Why isn't a deputy sheriff an "office" for the dual-office rules?
Because, as prior AG opinions explain, a deputy sheriff serves at the direction and pleasure of the sheriff rather than exercising a sovereign government function largely independent of others' control. That control is what keeps the position from being a constitutional office.

Can a constable enforce truck-weight limits?
Only if designated under Transportation Code section 621.4015, which applies in counties meeting specific population and international-border criteria. A constable not so designated is not authorized by section 621.401 to be a weight-enforcement officer in the constable role.

So how can a constable end up enforcing weight limits anyway?
If the same person is also commissioned as a deputy sheriff, section 621.401(3) authorizes a sheriff's deputy to be a weight-enforcement officer. The AG concluded that the person can act in that deputy-sheriff capacity even though the constable role alone would not qualify.

Background and statutory framework

Transportation Code chapter 621 generally gives weight-enforcement officers exclusive authority to enforce vehicle-weight regulations statewide (Tex. Transp. Code § 621.408(a)), and section 621.401 lists who may be such an officer, including a sheriff or sheriff's deputy (§ 621.401(3)) and a constable or deputy constable designated under section 621.4015 (§ 621.401(6)). The Department of Public Safety sets uniform weighing procedures by rule (§ 621.402(e)(1)) and may revoke an officer's authority for noncompliance (§ 621.402(e)(2)); its rule requires a memorandum of understanding and completion of weight-enforcement training (37 Tex. Admin. Code § 4.56(b)). Section 621.4015(a) lets a commissioners court designate a constable or deputy constable as a weight-enforcement officer only in counties meeting specific population, border, and planned-community criteria.

On dual service, the AG found no statutory bar (citing the sheriff and constable chapters, Tex. Loc. Gov't Code §§ 85.001-.023, 86.001-.025). The constitutional ban on holding more than one civil office of emolument (Tex. Const. art. XVI, § 40) applies only when both positions are offices, which turns on whether the person exercises a sovereign function largely independent of others' control (State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)). Prior AG opinions hold that a deputy sheriff is not such an officeholder (Tex. Att'y Gen. Op. Nos. GA-0470 (2006), GA-0402 (2006)). The common-law incompatibility doctrine likewise applies only between two offices (Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 152-53 (Tex. Comm'n App. 1927, judgm't adopted)).

On eligibility, the AG noted that constables not listed in section 621.401 are not authorized to weigh vehicles (Head v. State, 96 S.W.2d 981, 982 (Tex. Crim. App. 1936)), applying the doctrine that the expression of one implies the exclusion of others (Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273-74 (Tex. 1999)). But because every part of a statute must be given full effect (Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999)), subsection (3)'s authorization of a deputy sheriff stands on its own, so a person holding both commissions can serve as a weight-enforcement officer in the deputy-sheriff capacity.

Citations

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
• Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)
• Head v. State, 96 S.W.2d 981, 982 (Tex. Crim. App. 1936)
• Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273-74 (Tex. 1999)
• Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999)

Prior AG opinions:

• Tex. Att'y Gen. Op. No. GA-0470 (2006)
• Tex. Att'y Gen. Op. No. GA-0402 (2006)

Statutes:

• Tex. Transp. Code §§ 621.401(3), (6), 621.402(e)(1), (2), 621.4015(a), 621.408(a)
• 37 Tex. Admin. Code § 4.56(b)
• Tex. Loc. Gov't Code §§ 85.001-.023, 86.001-.025
• Tex. Const. art. XVI, § 40

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0189
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0189.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 21, 2018

The Honorable Matthew C. Poston Opinion No. KP-0189
Liberty County Attorney
1923 Sam Houston, Suite 202 Re: Whether an elected constable and
Liberty, Texas 77575 deputy constables may simultaneously serve
under the sheriff, specifically to perform
tasks related to the duties of a weight-
enforcement officer under Transportation
Code chapter 621 (RQ-0187-KP)

Dear Mr. Poston:

    You ask whether an elected constable and deputy constables may simultaneously serve under the sheriff, specifically to perform tasks related to the duties of a weight-enforcement officer under Transportation Code chapter 621. [1] Chapter 621 generally grants weight-enforcement officers the exclusive authority to enforce vehicle-weight regulations in any area of the State. TEX. TRANSP. CODE § 621.408(a). The statutory list of persons who may be a weight-enforcement officer includes sheriff's deputies. Id. § 621.401(3). You state that a constable and a deputy constable for Liberty County are also commissioned as deputy sheriffs. Request Letter at 2.

    The Department of Public Safety (the "Department") has the responsibility to establish uniform weighing procedures by rule to ensure that weight-enforcement officers obtain accurate measurement of motor vehicle weight. TEX. TRANSP. CODE § 621.402(e)(1). The Department may revoke or rescind an officer's weight-enforcement authority if the officer or the officer's law enforcement agency fails to comply with those rules. Id. § 621.402(e)(2). The Department requires a law enforcement agency that employs weight-enforcement officers to enter into a memorandum of understanding with the Department and requires officers to complete the Department's weight-enforcement training to receive certification as a weight-enforcement officer. 37 TEX. ADMIN. CODE § 4.56(b).

    Your question concerns whether a person's commission as a constable or deputy constable disqualifies the person from serving as a weight-enforcement officer, not whether the Department should provide its training to any particular persons. We preliminarily consider whether statutes, the constitution, or the common law prohibit a constable or deputy constable from serving simultaneously as a sheriff's deputy. First, no statute we are aware of prohibits such simultaneous service. See, e.g., TEX. LOC. GOV'T CODE §§ 85.001-.023 (chapter 85, concerning sheriffs and deputy sheriffs), 86.001-.025 (chapter 86, concerning constables and deputy constables).

     Second, article XVI, section 40 of the Texas Constitution, where applicable, prohibits a person from simultaneously holding or exercising "more than one civil office of emolument." TEX. CONST. art. XVI, § 40. However, the prohibition applies only if both positions are civil offices within the meaning of the constitutional provision. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). Whether a person holds a civil office subject to article XVI, section 40 depends on whether the person exercises a sovereign function of the government "largely independent of the control of others." Id. Opinions of this office determine that, while elected constables are constitutional officeholders, deputy sheriffs, who serve at the direction and pleasure of the sheriff, do not hold a public office for purposes of article XVI, section 40. See Tex. Att'y Gen. Op. Nos. GA-0470 (2006) at 4, GA-0402 (2006) at 1. Accordingly, article XVI, section 40 does not preclude a person from simultaneously holding the positions of constable or deputy constable and the position of deputy sheriff.

   Third, the common-law doctrine of incompatibility also may preclude a person from holding two public positions. See Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted). Like the constitutional prohibition of dual officeholding, however, the common-law doctrine of incompatibility prevents a person from holding two positions only when each position constitutes an office. See id. at 152-53. Because a deputy sheriff does not hold an office, the common-law doctrine of incompatibility does not apply. See Tex. Att'y Gen. Op. No. GA-0402 (2006) at 2; see also Tex. Att'y Gen. Op. No. GA-0470 (2006) at 4. In short, neither article XVI, section 40 of the Constitution, nor any statute, nor the common-law doctrine of incompatibility prevents a constable or deputy constable from simultaneously serving as a deputy sheriff.

   We next consider the persons eligible to be weight-enforcement officers under chapter 621 of the Transportation Code. Section 621.401 defines "weight enforcement officer" by listing persons eligible for the position:

               In this subchapter, "weight enforcement officer" means:

                        (3) a sheriff or sheriff's deputy;

                         ...; or

                        (6) a constable or deputy constable designated under Section 621.4015. [2]

TEX. TRANSP. CODE § 621.401(3), (6). Constables and deputy constables not mentioned in section 621.401 are not authorized by that section to be weight-enforcement officers. See Head v. State, 96 S.W.2d 981, 982 (Tex. Crim. App. 1936) (holding that a statute that gave authority to weigh vehicles to Department weight inspectors did not give such authority to constables or other peace officers). By authorizing some constables and deputy constables, section 621.401 indicates that other constables and deputy constables are excluded under the statutory construction doctrine that "the expression of one implies the exclusion of others." Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273-74 (Tex. 1999) (discussing the doctrine of expressio unius est exclusio alterius). However, your question asks about individuals commissioned as both sheriff's deputies and as constable or constable's deputies. The statute's construction must give full effect to subsection (3)'s authorization of sheriffs and deputy sheriffs to serve as weight-enforcement officers. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999) (holding that courts "must view the statute's terms in context, and give them full effect"). Thus, the fact that such individuals may not have weight-enforcement authority as a constable or deputy constable does not affect their weight-enforcement authority as a deputy sheriff. Accordingly, section 621.401 allows a person commissioned as a sheriff's deputy to serve as a weight-enforcement officer even if the person is also commissioned as a constable or constable's deputy. See TEX. TRANSP. CODE § 621.401(3).

                                 SUMMARY

                 Neither article XVI, section 40 of the Texas Constitution, nor any statute, nor the common-law doctrine of incompatibility precludes a constable or constable's deputy from serving simultaneously as a sheriff's deputy. A deputy sheriff may serve as a weight-enforcement officer under section 621.401 of the Transportation Code, even if the person simultaneously serves as a constable or deputy constable.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Matthew C. Poston, Liberty Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 3 (Oct. 10, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] Section 621.4015(a) of the Transportation Code provides:

            (a) A county commissioners court may designate a constable or deputy constable of the county as a weight enforcement officer in a county:

               (1) that is a county with a population of 1.5 million or more and is within 200 miles of an international border; or

               (2) that is adjacent to a county with a population of 3.3 million or more; and

               (3) in which a planned community is located that has 20,000 or more acres of land, that was originally established under the Urban Growth and New Community Development Act of 1970 (42 U.S.C. Section 4501 et seq.), and that is subject to restrictive covenants containing ad valorem or annual variable budget based assessments on real property.

    TEX. TRANSP. CODE § 621.4015(a).