Can the same person be a Texas county constable and a groundwater district board member?

TX AG Opinion GA-0540: Can a constable also sit on a groundwater district board?

Plain-English summary

The Goliad County Groundwater Conservation District, whose boundaries match the county's, is run by a seven-member board. When a board seat opened, the remaining members considered appointing a sitting Goliad County constable to fill it. The county attorney asked whether one person could legally hold both posts at once, starting with whether it would violate article XVI, section 40 of the Texas Constitution, which says no person may hold or exercise more than one civil office of emolument at the same time.

The Attorney General answered no, the dual appointment is barred. The analysis turned on two ideas: an "office" and an "emolument." A seat on a governing board is a public office, because the holder exercises a sovereign function of government for the public's benefit, largely free of others' control. An "emolument" is a pecuniary profit, gain, or advantage; reimbursing actual expenses is not an emolument, but anything paid above actual expenses is. A groundwater district director is entitled under the Water Code to fees of office of up to $150 a day, capped at $9,000 a year, and that pay is not limited to expense reimbursement, so a director holds an office of emolument. It does not matter that a particular director might decline the pay or take less, because the right to the compensation attaches to the office itself. A constable likewise holds an office of emolument: a constable is a precinct officer, and the constitution requires the commissioners court to pay constables on a salary basis.

Because both positions are civil offices of emolument, section 40(a) flatly prohibits one person from holding both at the same time. Having resolved the question on constitutional grounds, the opinion did not need to analyze the separate common-law doctrine of incompatibility, which can also bar one person from holding two offices whose duties conflict.

Currency note

This opinion was issued in 2007. 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 Water Code director-fee provision (including the daily and annual caps), the Local Government Code constable provisions, and the constitutional dual-office and compensation clauses may have been amended since 2007. Confirm the current law before relying on the specific dollar caps or rules described here.

Who this opinion affected (as of 2007)

Constables and other paid local officials: The opinion told them they could not also take a paid district directorship, because section 40(a) bars holding two civil offices of emolument at once. The bar applied regardless of whether the person intended to collect the second office's pay.

Groundwater conservation district boards: The opinion told boards filling a vacancy that they could not appoint a sitting constable (or, by the same logic, another paid officeholder) to a director seat, since a director's fees of office make the directorship an office of emolument.

The Goliad County Commissioners Court: The opinion reaffirmed the constitutional command that constables be compensated on a salary basis, which is part of why the constable's post counts as an office of emolument.

Common questions

Can a Texas constable serve on a groundwater conservation district board too?
No, based on this opinion. The Attorney General concluded article XVI, section 40(a) bars one person from holding both, because each is a civil office of emolument.

What makes a position an "office of emolument"?
The opinion explained it is a public office whose holder receives pay beyond reimbursement of actual expenses. A district director's daily fees of office and a constable's required salary both qualify.

Does it matter if the person promises not to take the second salary?
No. The opinion stated that the right to the compensation attaches to the office, so declining or reducing the pay does not change the analysis.

Did the Attorney General also rely on the incompatibility doctrine?
No. Because the constitutional dual-office bar resolved the question, the opinion expressly did not reach the common-law incompatibility doctrine.

Background and statutory framework

The district was created by a 2001 special act under article XVI, section 59 of the Texas Constitution, with boundaries coextensive with Goliad County and a board of seven directors who fill their own vacancies by appointment (Act of May 25, 2001, 77th Leg., R.S., ch. 1359, 2001 Tex. Gen. Laws 3360; Tex. Const. art. XVI, § 59). Article XVI, section 40(a) provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument" (Tex. Const. art. XVI, § 40(a)). A member of a governing board holds an office because a sovereign function of government is conferred on the holder for the public benefit, largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)), and an "emolument" is a pecuniary profit, gain, or advantage; reimbursement of actual expenses is not an emolument, but amounts in excess of actual expenses are (Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944)).

The district's enabling act adopts the general law applicable to groundwater conservation districts, including Water Code chapter 36, and the act prevails over conflicting general law, but it says nothing about director compensation. Water Code section 36.060(a) entitles a director to fees of office of not more than $150 a day for each day spent performing director duties, capped at $9,000 a year, and that compensation is not limited to expense reimbursement (Tex. Water Code Ann. § 36.060(a), (a)-(b) (Vernon Supp. 2006)). Because the right to compensation is an incident of the office, and declining or reducing it is irrelevant, a director holds an office of emolument (Markwell v. Galveston County, 186 S.W.2d 273, 277 (Tex. Civ. App.-Galveston 1945, writ ref'd); Broom v. Tyler County Comm'rs Court, 560 S.W.2d 435, 437 (Tex. Civ. App.-Beaumont 1977, no writ)). A constable is a precinct officer (Tex. Loc. Gov't Code Ann. § 154.001 (Vernon 1999)) whom the commissioners court must compensate on a salary basis (Tex. Const. art. XVI, § 61(b)), so a constable also holds an office of emolument. The opinion concluded section 40(a) bars holding both offices simultaneously and did not reach the common-law incompatibility doctrine.

Citations

Constitution and statutes:

• Tex. Const. art. XVI, § 40(a)
• Tex. Const. art. XVI, § 61(b)
• Tex. Const. art. XVI, § 59
• Tex. Water Code Ann. § 36.060(a), (a)-(b) (Vernon Supp. 2006)
• Tex. Loc. Gov't Code Ann. § 154.001 (Vernon 1999)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944)
• Markwell v. Galveston County, 186 S.W.2d 273, 277 (Tex. Civ. App.-Galveston 1945, writ ref'd)
• Broom v. Tyler County Comm'rs Court, 560 S.W.2d 435, 437 (Tex. Civ. App.-Beaumont 1977, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0540
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0540.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 17, 2007

The Honorable Rob Baiamonte
Goliad County Attorney
Post Office Box 24
Goliad, Texas 77963

Opinion No. GA-0540

Re: Whether an individual may simultaneously serve as a constable in Goliad County and as a member of the board of directors of the Goliad County Groundwater Conservation District (RQ-0548-GA)

Dear Mr. Baiamonte:

You ask whether an individual may simultaneously serve as a constable in Goliad County and as a member of the board of directors of the Goliad County Groundwater Conservation District (the "district").

The district was created by a special act of the Legislature, pursuant to the authority of article XVI, section 59 of the Texas Constitution. See Act of May 25, 2001, 77th Leg., R.S., ch. 1359, 2001 Tex. Gen. Laws 3360, 3360-63. "The boundaries of the district are coextensive with the boundaries of Goliad County, Texas." Id. § 3, at 3360. "The district is governed by a board of seven directors." Id. § 10(a), at 3361. "If a vacancy occurs on the board, the remaining board members shall appoint a person to fill the vacancy." Id. § 11(b), at 3362. You indicate that there is at present a vacancy on the board and that the board is considering the appointment of a Goliad County constable. See Request Letter, supra note 1.

You first ask whether such appointment would contravene article XVI, section 40 of the Texas Constitution, which provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40(a); Request Letter, supra note 1. By definition, a member of a governing board holds an "office." See Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) ("the determining factor which distinguishes a public officer from an employee is 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"). An "emolument" has been described as "a pecuniary profit, gain or advantage." Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944). Although the reimbursement of actual expenses does not constitute an emolument, any amount received in excess of actual expenses is an emolument. Tex. Att'y Gen. Op. No. GA-0032 (2003) at 2.

Section 5 of the district's enabling legislation provides:

Except as otherwise provided by this Act, the district has all of the rights, powers, privileges, authority, functions, and duties provided by the general law of this state, including Chapter 36, Water Code, applicable to groundwater conservation districts created under Section 59, Article XVI, Texas Constitution. This Act prevails over any provision of general law that is in conflict with or inconsistent with this Act.

Act of May 25, 2001, 77th Leg., R.S., ch. 1359, § 5(a), 2001 Tex. Gen. Laws 3360, 3360. No provision of the district's enabling legislation makes any reference to compensation for district directors. However, a provision of chapter 36 of the Water Code does so:

A director [of a groundwater conservation district] is entitled to receive fees of office of not more than $150 a day for each day the director actually spends performing the duties of a director. The fees of office may not exceed $9,000 a year.

TEX. WATER CODE ANN. § 36.060(a) (Vernon Supp. 2006). The compensation is not limited to reimbursement for expenses. See id. § 36.060(a)-(b).

"[T]he right to the compensation attached to a public office is an incident to the title to the office." Markwell v. Galveston County, 186 S.W.2d 273, 277 (Tex. Civ. App.-Galveston 1945, writ ref'd). The fact that the officer may decline the compensation, or accept less than the full amount, is irrelevant. See Broom v. Tyler County Comm'rs Court, 560 S.W.2d 435, 437 (Tex. Civ. App.-Beaumont 1977, no writ). Thus, a district director holds an "office of emolument."

A constable also holds an "office of emolument." A constable is a "precinct officer." TEX. LOC. GOV'T CODE ANN. § 154.001 (Vernon 1999). The Texas Constitution requires a commissioners court to compensate "justices of the peace, constables, deputy constables and precinct law enforcement officers on a salary basis." TEX. CONST. art. XVI, § 61(b).

We conclude that an individual may not, under article XVI, section 40(a) of the Texas Constitution, simultaneously serve as both a Goliad County constable and as a member of the board of directors of the district. Accordingly, we need not consider your question under the common-law doctrine of incompatibility.

SUMMARY

An individual is barred by article XVI, section 40(a) of the Texas Constitution from simultaneously serving as both a Goliad County constable and as a member of the board of directors of the Goliad County Groundwater Conservation District.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee