Can a Texas county commissioner also serve as a volunteer firefighter?

Plain-English summary

A county attorney asked whether a newly elected McCulloch County commissioner could keep serving as a volunteer firefighter. The commissioner had been a member of the Lohn volunteer fire department since 1975. Lohn is an unincorporated town of about 100 people in the county. As a volunteer, the commissioner responds to calls and attends monthly meetings but is paid nothing. The county donates $400 a year to each of its six volunteer fire departments, including Lohn, with no strings attached and no control over how the money is used. The Lohn department is not on county property and is not led by a chief the county must approve.

The opinion concluded the commissioner may hold both roles. It worked through the two rules that usually block someone from wearing two public hats. First, article XVI, section 40 of the Texas Constitution prohibits one person from simultaneously holding more than one office of emolument (a paid public office). That rule did not apply, because a volunteer firefighter does not hold an office at all and, here, received no compensation.

Second, the common-law doctrine of incompatibility bars a person from holding an office while also holding employment that is subordinate to that office. The opinion relied on Attorney General Letter Opinion 94-070, involving a Hudson city council member who also served in the Hudson volunteer fire department; there, even though the city owned the fire station land and contributed money, incompatibility did not apply because the city did not control the department or set the firefighters' duties. The same was true in Lohn: the commissioners court neither controls the Lohn department nor determines its members' duties. The opinion distinguished a 2000 opinion (JC-0199) about Gilmer, where the city charter made the volunteer department the city's official fire department, the chief had to be approved by the city council and was responsible to it, and the department was housed on city property. That degree of city control created incompatibility, but the Lohn department was independent, so the commissioner could serve in both capacities.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The analysis turned on the specific facts of the Lohn department's independence; the constitutional and common-law rules on dual office holding can shift with later authority, so verify current law and the specific facts before relying on this.

What the opinion meant for those who asked

County commissioners and other local officeholders (what the opinion held for them): The opinion held that holding county office did not bar serving as an unpaid volunteer firefighter where the governing body does not control the fire department or set the firefighters' duties.

Volunteer fire departments (what the opinion held for them): The opinion treated the department's independence (not county-controlled, not on county property, no county-approved chief) as the fact that kept its volunteers free of incompatibility with county office.

Officials weighing a similar dual role (what the opinion held for them): The opinion's contrast between the independent Lohn and Hudson departments and the city-controlled Gilmer department shows that the answer turns on control: the more the government entity controls the department, the more likely incompatibility applies.

Common questions

Can a Texas county commissioner also be a volunteer firefighter?
The opinion concluded yes, at least where the commissioners court does not control the fire department or determine its members' duties.

Does the constitution's ban on holding two offices apply?
No. The opinion explained that article XVI, section 40 bars holding two paid public offices, and a volunteer firefighter holds no office and was unpaid.

What about the rule against holding an office and a subordinate job?
The opinion concluded the common-law incompatibility doctrine did not apply because the volunteer department was not subordinate to or controlled by the commissioners court.

When would serving in both create a conflict?
The opinion pointed to its Gilmer decision, where the city's volunteer fire department was the city's official department, housed on city property, and led by a council-approved chief responsible to the council, as an example where incompatibility did apply.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution prohibits one person from simultaneously holding more than one office of emolument. Tex. Const. art. XVI, § 40. The opinion noted that prior opinions hold a volunteer firefighter does not hold an office. The common-law incompatibility doctrine, addressed in prior opinions, bars holding an office while also holding employment subordinate to that office. The controlling analysis came from Attorney General Letter Opinion 94-070 (the Hudson volunteer fire department), which found no incompatibility where the city did not control the department or determine the firefighters' duties, and the opinion distinguished Attorney General Opinion JC-0199 (2000) (the Gilmer department), where city control of the department created incompatibility.

Citations

Constitutional provisions:

• Tex. Const. art. XVI, § 40

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. H-665 (1975); DM-55 (1991); JC-0199 (2000)
• Tex. Att'y Gen. LO-94-070; LO-97-034; LO-93-054; LO-90-045; LA-154 (1978); LA-114 (1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0385
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0385.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

June 5, 2001

The Honorable Virginia K. Treadwell
McCulloch County Attorney
Courthouse, Room 302
Brady, Texas 76825

Opinion No. JC-0385

Re: Whether a county commissioner may serve as a voluntary fire fighter (RQ-0335-JC)

Dear Ms. Treadwell:

You ask whether a county commissioner may serve as a volunteer fire fighter for an unincorporated city in his county. For the reasons explained below, we conclude that he may do so.

You explain that a newly elected commissioner for McCulloch County has served as a member of the volunteer fire department for the City of Lohn since 1975. Lohn is an unincorporated town of approximately 100 persons that is located in McCulloch County. As a volunteer fire fighter, the commissioner "responds to calls and attends monthly meetings," but receives no compensation for his services.

(Footnote: See Letter from Honorable Virginia K. Treadwell, McCulloch County Attorney, to Honorable John Cornyn, Texas Attorney General (Jan. 2, 2001) (on file with Opinion Committee).)

You indicate that the commissioners court donates $400 per year to each of the six volunteer fire departments in McCulloch County, including Lohn. "There are no stipulations or conditions placed on how the money is spent and the commissioners have no control over how the money is utilized." Furthermore, the "Lohn VFD is not under the control of McCulloch County. It is not housed on county property and is not led by a chief who must be approved by the county commissioners court."

(Footnote: Brief from Honorable Virginia K. Treadwell, McCulloch County Attorney, to Honorable John Cornyn, Texas Attorney General, at 2 (Mar. 19, 2001) (on file with Opinion Committee).)

Article XVI, section 40 of the Texas Constitution prohibits an individual from simultaneously holding more than one office of emolument. See TEX. CONST. art. XVI, § 40. A volunteer fire fighter does not hold an office. See Tex. Att'y Gen. Op. No. H-665 (1975) at 2; Tex. Att'y Gen. LO-93-054, at 1; Tex. Att'y Gen. LA-154 (1978) at 1. Thus, article XVI, section 40 does not preclude the commissioner from serving as a volunteer fire fighter.

The common-law doctrine of incompatibility bars a person from holding an office while at the same time holding an employment that is subordinate to that office. See Tex. Att'y Gen. Op. No. DM-55 (1991) at 1; Tex. Att'y Gen. LO-97-034, at 1; LO-90-045, at 1; Tex. Att'y Gen. LA-114 (1977) at 2-3. In Attorney General Letter Opinion 94-070, this office considered whether common-law incompatibility prohibited a member of the Hudson City Council from serving as a member of the Hudson Volunteer Fire Department. See Tex. Att'y Gen. LO-94-070. In that instance, the city owned the land on which the fire station was located and leased it to the volunteer fire department for $1.00 per year; and the city contributed $7000 per year to the maintenance of the department. See id. The opinion concluded that the doctrine of incompatibility did not bar the dual service, because "[t]he city does not control the HVFD or determine the duties of volunteer fire fighters." Id. at 2. In our view, this opinion controls the situation you present. The commissioners court of McCulloch County neither controls the Lohn Volunteer Fire Department nor determines the duties of its members.

Attorney General Opinion JC-0199 (2000) is not to the contrary. There, we found that a member of the Gilmer Volunteer Fire Department was prohibited by common-law incompatibility from simultaneously serving as a member of the Gilmer City Council. In that instance, however, the city charter had designated the volunteer fire department as the "Fire Department for the City of Gilmer." Furthermore,

[a] fire chief, elected by the members of the department, must be "approved or denied by the City Council.". . . The fire chief is the chief administrative officer of the department and is fully responsible to the council for its administration and for enforcing the resolutions and ordinances of the city council. The chief, with the approval of the city manager, appoints and removes the "employees" of the department. Whereas the Hudson Volunteer Fire Department appears to have been a truly independent organization, the department in Gilmer is clearly under the control of the city, is housed on city property, and is led by a chief who must be approved by the city council.

Tex. Att'y Gen. Op. No. JC-0199 (2000) at 1 (citations omitted).

Unlike the department in the Gilmer case, but like the department in Hudson, the Lohn volunteer fire department is clearly not under the control of the Commissioners Court of McCulloch County. We conclude that a county commissioner of McCulloch County is not precluded from simultaneously serving as a member of the volunteer fire department of Lohn, a town located in that county.

SUMMARY

A county commissioner of McCulloch County is not prohibited from simultaneously serving as a member of the volunteer fire department of Lohn, a town located in that county.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee