Can one person serve as both city manager and police chief in a Texas home-rule city?

Plain-English summary

Small Texas cities sometimes want one capable person to wear two hats, and the City of Ranger wanted to know whether its city manager could also serve as police chief, on an interim or permanent basis. The criminal district attorney put the question to the AG. The answer turned on two different legal rules, and the AG kept them separate.

The first rule is the Texas Constitution's prohibition (article XVI, section 40) on a single person holding more than one civil office of emolument. That bar applies only when both positions are "offices." Whether a position is an office depends on whether a sovereign government function is conferred on the person to exercise largely independent of the control of others. The AG explained that, under Ranger's charter, a municipal police chief serves at the pleasure of the governing body and acts subject to control, which makes the chief an employee, not an officer. Because one of the two positions was not an office, the constitutional dual-office bar did not prohibit the same person from being police chief and city manager.

The second rule is the common-law doctrine of incompatibility, which has three prongs: self-appointment, self-employment, and conflicting loyalties. The self-appointment and conflicting-loyalties prongs apply only when both positions are offices, so they did not apply here. The self-employment prong was the live issue: it prohibits one person from holding an office and also an employment that the office supervises. The Ranger charter said the city manager appoints and removes city employees, with the city commission advising and consenting to appointments but not removals, which suggested the city manager supervises the police chief. To the extent the manager supervises the chief, the AG concluded one person could not serve in both the separate city-manager office and the chief-of-police employment, consistent with a 2003 opinion (GA-0077) holding a city manager may not serve as police chief where the manager has supervisory authority over the chief.

The AG then pointed to a path that avoids the problem. The Ranger charter authorizes the city commission to create and consolidate offices and to divide the city's administration into offices or departments as it sees fit. While a city manager could not employ himself or herself as police chief under the self-employment doctrine, the commission could combine the two positions into a single position. Once combined, the city could employ one individual in that single position without raising self-employment incompatibility.

Currency note

This opinion was issued in 2019. 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

City commissions and councils in home-rule cities: At the time of the opinion, the AG read the law to allow one person to hold both roles only if the city restructured them. Keeping city manager and police chief as two separate positions, with the manager supervising the chief, ran into the self-employment incompatibility doctrine. Combining them into one consolidated position under the charter's create-and-consolidate power avoided that problem.

City managers and police chiefs: The opinion treated the police chief as an employee rather than a constitutional officer under Ranger's charter, so the constitutional dual-office prohibition was not the barrier. The barrier was the supervisory relationship: a manager who appoints and removes the chief cannot also be the chief while the two remain distinct positions.

City attorneys advising on charter structure: The opinion turned heavily on the specific Ranger charter language about appointment, removal, and the commission's power to create and consolidate offices. The AG's reasoning was charter-specific, so the result depended on those provisions rather than a general rule that would apply identically to every home-rule city.

Common questions

Does the Texas Constitution bar one person from being both city manager and police chief? Not in this situation. The AG concluded the constitutional bar on holding more than one civil office of emolument (article XVI, section 40) did not apply, because under Ranger's charter the police chief is an employee, not an officer.

So why couldn't one person just hold both jobs?
Because of the common-law self-employment incompatibility doctrine. The Ranger charter indicated the city manager appoints and removes the police chief, and a person cannot hold an office while also holding an employment that the office supervises.

Is there any way to have one person do both?
Yes. The AG said the city commission could use its charter power to create and consolidate offices to merge city manager and police chief into a single position, and then employ one individual in that combined position.

What makes a police chief an employee rather than an officer here? The opinion explained that the Ranger charter has the chief serving at the pleasure of the governing body and subject to control, rather than exercising sovereign authority largely independent of others, which is the test for being a public officer.

Background and statutory framework

Article XVI, section 40(a) of the Texas Constitution prohibits one person from simultaneously holding more than one civil office of emolument, and the AG noted (citing State ex rel. Hill v. Pirtle) that the bar applies only if both positions are compensated offices. Whether a position is an office depends on whether a sovereign government function is conferred to be exercised largely independent of the control of others (Aldine Independent School District v. Standley). The AG relied on GA-0393 for the proposition that a municipal police chief usually serves at the governing body's pleasure as an employee, and on the Ranger charter's police-department provisions (article II, section 22), to conclude the chief was not an officer.

The common-law incompatibility doctrine, drawn from Ehlinger v. Clark and a line of AG opinions (GA-0307, GA-0766, GA-0169, GA-0849), has three prongs. Self-appointment and conflicting-loyalties apply only when both positions are offices, so only self-employment was relevant. The Ranger charter (article V, sections 20, 21, 23, and section 1 on the commission's composition) gives the city manager appointment and removal power over employees and gives the commission authority to create and consolidate offices. Applying GA-0077, the AG concluded a single person could not separately serve as supervising city manager and supervised police chief, but that consolidating the offices into one position would remove the self-employment concern.

Citations

Constitutional and charter provisions:

• Tex. Const. art. XVI, § 40(a)
• City of Ranger, City Charter art. II, § 22; art. V, §§ 1, 20, 21, 23

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0393 (2006)
• Tex. Att'y Gen. Op. No. GA-0307 (2005)
• Tex. Att'y Gen. Op. No. GA-0766 (2010)
• Tex. Att'y Gen. Op. No. GA-0169 (2004)
• Tex. Att'y Gen. Op. No. GA-0849 (2011)
• Tex. Att'y Gen. Op. No. GA-0077 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0265
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0265.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 13, 2019

The Honorable Russell D. Thomason
Opinion No. KP-0265
Criminal District Attorney
91st Judicial District
Re: Whether the same individual may serve as
100 West Main, Suite 204
city manager and as police chief in a home-rule
Eastland, Texas 76448
municipality (RQ-0275-KP)

Dear Mr. Thomason:

You ask, on behalf of the City of Ranger ("City"), whether a city manager in a home-rule municipality may simultaneously serve as the interim or permanent police chief.1 As background, the city attorney explains that the City is a home-rule city.2 The city charter provides that the city commission may appoint a city manager, "who shall be the administrative head of the municipal government." CITY OF RANGER, CITY CHARTER art. V, § 20. Separately, the charter also allows the city commission to "create and consolidate such offices" and "divide the administration of the City's affairs into such offices or departments at their discretion." Id. § 23. With these provisions in mind, we address your question.

The Texas Constitution prohibits a single individual from simultaneously holding "more than one civil office of emolument." TEX. CONST. art. XVI, § 40(a). The prohibition applies if both positions are civil offices entitled to an emolument, or "a pecuniary profit, gain, or advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994). If only one position is compensated, the prohibition will not apply. See id. The information provided through your request and the City's information does not address whether both positions are compensated, but we assume they are and turn to the question of whether both positions are "offices" under article XVI, subsection 40(a).

Whether an individual is a public officer within the meaning of article XVI, section 40, depends on "whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). Numerous opinions of this office conclude that under usual circumstances a municipal chief of police serves at the pleasure of the governing body and serves as an employee rather than an officer of the municipality. See, e.g., Tex. Att'y Gen. Op. No. GA-0393 (2006) at 4. The Ranger city charter authorizes the City to "establish and maintain the City Police Department, prescribe the qualifications and duties of policemen and regulate their conduct." CITY OF RANGER, CITY CHARTER art. II, § 22. Based on this language, it does not appear that the police chief exercises his authority "largely independent of the control of others" and thus does not hold an office within the meaning of article XVI, section

40. See Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3 (recognizing the inapplicability of a "public
    officer" designation if the person's "actions are subject to control and his employment may be terminated at will by a superior body"). Accordingly, article XVI, section 40 of the Texas Constitution does not prohibit the City's municipal police chief from simultaneously holding the position of city manager.

    In addition to constitutional concerns, the common-law doctrine of incompatibility
    

    prohibits dual public service in certain instances. It has three components: (1) self-appointment; (2) self-employment; and (3) conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0307 (2005) at 3. Self-appointment incompatibility prevents one person from holding two offices, one of which appoints the other. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) ("[C]ourts have with great unanimity throughout the country declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint."). Similarly, self- employment incompatibility prohibits one person from holding an office and an employment that the office supervises. See id.; Tex. Att'y Gen. Op. No. GA-0766 (2010) at 1. Conflicting-loyalties incompatibility "prohibits an individual from simultaneously holding two positions that would prevent him or her from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2. Self-appointment and conflicting- loyalties incompatibility only apply in instances when both positions are officers. Tex. Att'y Gen. Op. No. GA-0849 (2011) at 1-2. Because a municipal police chief is not an officer, we need address only the self-employment prong of incompatibility.

    The city charter provides that the city manager appoints and removes all officers or
    

    employees of the City. CITY OF RANGER, CITY CHARTER art. V, § 21. While the city commission advises and consents to the appointments, the charter does not require the same for removals. Id. Thus, at a minimum, the charter language suggests that the city manager supervises the chief of police. To the extent that is the case, the common-law doctrine of self-employment incompatibility prohibits an individual from serving as both the city manager and chief of police. Tex. Att'y Gen. Op. No. GA-0077 (2003) at 2 ("A city manager may not serve as police chief if, as city manager, he or she has supervisory authority over the chief.").

    Yet, the city charter authorizes the city commission, composed of the mayor and four other
    

    city commissioners, to "create and consolidate such offices and may divide the administration of the City's affairs into such offices or departments at their discretion." CITY OF RANGER, CITY CHARTER art. V, §§ 1, 23; see also id. § 1 (describing composition of the city commission). The city attorney suggests that the city commission "would be within the powers granted to it by the City's Charter to combine such offices as they desired."3 While a city manager would violate the doctrine of incompatibility by employing himself or herself as police chief, the city charter authorizes the city commission to combine those positions into one position. If the city commission decided to do so, once combined, it could employ a single individual in that position without raising issues of self-employment incompatibility.

                                  SUMMARY
    
                 Article XVI, section 40 of the Texas Constitution, which
          prohibits dual office holding in certain circumstances, does not
          prevent the City of Ranger chief of police from simultaneously
          serving as city manager.
    
                  The    common-law          doctrine    of    self-employment
          incompatibility prohibits one person from holding an office and an
          employment that the office supervises. Language in the Ranger city
          charter suggests that the city manager may supervise the chief of
          police. To the extent that is the case, an individual may not serve in
          the two separate positions of city manager and chief of police.
    
                  If the city commission exercised its authority to combine the
          roles of city manager and chief of police, the city commission could
          employ a single individual to perform both roles without raising
          concerns about self-employment incompatibility.
    
                                         Very truly yours,
    
                                         KEN PAXTON
                                         Attorney General of Texas
    

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

1Letter from Honorable Russell D. Thomason, Crim. Dist. Att'y, 91st Jud. Dist., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 13, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2Attached to the request letter, you include a letter from the city attorney addressed to our office. See Letter from The Knight Law Firm, L.L.P. (Jan. 29, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs. 3Attached to the request letter, you include a memorandum from the city attorney addressed to the mayor, city commissioners, and city manager. See Memorandum from The Knight Law Firm, L.L.P. at 4 (Dec. 21, 2018) (on file with the Op. Comm.).