Can one person hold two county jobs in Texas, like deputy tax collector and court reporter, at the same time?

Texas AG Opinion JM-1083: Can One Person Hold Two County Jobs?

Plain-English summary

The Rockwall County Criminal District Attorney asked the Attorney General a real staffing question. A woman employed by the county as the tax assessor-collector's chief deputy had previously been the official court reporter for the county court, and she wanted to know whether she could legally hold both positions at once. The answer worked through three separate legal barriers, and none of them stood in the way.

The first was the Texas Constitution's rule (article XVI, section 40) that no person may hold more than one "civil office of emolument" at the same time. That rule only bites if both jobs are civil offices. They are not. A long line of Texas cases holds that an official court reporter, even though a statute calls the reporter a "sworn officer of the court," is an employee and not an officer, because the position does not carry any sovereign function of government. And a deputy appointed by a county tax assessor-collector to help with the office's work is also an employee, not a civil officer. Two employee positions, so section 40 did not apply.

The second barrier was the common-law doctrine of incompatibility, which can stop one person from holding two positions where one answers to the other. The opinion noted this doctrine does not bar one person from holding two public employments, so it did not prohibit this combination either. The third was a full-time argument. The DA had suggested a court reporter must be a full-time employee, so someone already working as a deputy could not also fill the role. The opinion rejected that premise. The court reporter statute describes the job by its duties (attending sessions, taking shorthand, preparing transcripts on request), not by a required number of hours, and no statute fixes a county court reporter's salary that must be paid regardless of hours worked. The commissioners court sets the salary and can make it match the hours actually worked. So the reporter position is not legally a full-time job. Whether this particular person could realistically meet both work schedules was a fact question for the county judge to weigh in deciding whether to appoint her, not a legal question the Attorney General could resolve.

Currency note

This opinion was issued in 1989. 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 court reporter statutes in the Government Code and the county-employee and salary provisions of the Local Government Code have been amended since 1989. The specific section numbers and the January 1, 1972 salary floor described here are historical. Anyone facing a present-day question about holding two public positions should check the current constitutional and statutory provisions and current case law on who counts as an officer versus an employee.

Who this opinion affected (as of 1989)

County employees weighing a second county job: The opinion confirmed that two positions classified as employment (rather than public office) could be held by the same person without violating the one-office-of-emolument rule.

County judges making court reporter appointments: The opinion left the practical scheduling judgment with the appointing judge. Whether a person already holding another county job could keep up with the reporter's duties was a fact question for the judge, not a legal bar.

Commissioners courts setting pay: The opinion reaffirmed that a county court reporter's salary is set by the commissioners court and can be set to match the hours worked, rather than being a fixed full-time salary.

Common questions

Does Texas law bar one person from holding two county jobs?
Not automatically. The constitutional ban in article XVI, section 40 applies only to holding more than one civil office of emolument. Positions that are employment rather than public office, like a court reporter or a deputy tax collector, are not covered.

Is a court reporter a public officer in Texas?
No, according to a long line of cases. Even though a statute calls the official court reporter a "sworn officer of the court," the courts have held the reporter is an employee, not an officer, because the job carries no sovereign governmental function.

Does a county court reporter have to work full-time?
No. The opinion concluded the position is defined by its duties, not by a set number of hours, and no statute requires a fixed full-time salary. The commissioners court can set pay to match the hours worked.

Who decides whether the person can actually handle both jobs?
The county judge, as a practical matter, when deciding whether to make the appointment. It is a fact question about scheduling, not a legal question for an attorney general opinion.

Background and statutory framework

The question was whether the same person could be the chief deputy to the Rockwall County tax assessor-collector and the official court reporter for the Rockwall County Court. The opinion first considered article XVI, section 40 of the Texas Constitution, which provides that no person shall hold or exercise at the same time more than one civil office of emolument.

An official court reporter is appointed by each judge of a court of record and is a sworn officer of the court holding office at the pleasure of the court. Gov't Code § 52.041. A county court is a court of record. Tex. Const. art. V, § 15. Despite the "sworn officer" language, Texas courts have consistently treated a court reporter as an employee rather than an officer. A court reporter is not an officer within article XVI, section 30 (duration of offices). Robertson v. Ellis County, 84 S.W. 1097, 1099 (Tex. Civ. App. 1904, no writ) (official stenographer appointed by the district court held no office, because the position conferred no sovereign function of the judicial department). Other cases reached the same conclusion under other provisions. Lightfoot v. Lane, 140 S.W. 89, 90 (Tex. 1911) (stenographer for a court of civil appeals was an employee, not an officer); Harris County v. Hunt, 388 S.W.2d 459, 467 (Tex. Civ. App. - Houston 1965, no writ) (court reporter not an officer within article XVI, section 61, which requires officers to pay fees into the county treasury); Tom Green County v. Proffitt, 195 S.W.2d 845, 847 (Tex. Civ. App. - Austin 1946, no writ) (official court reporter not a "public officer" within article III, section 56's ban on local laws creating offices). This office had likewise concluded a court reporter is not a civil officer of emolument within article XVI, section 40. Attorney General Opinion O-6491 (1945). So a county court reporter is not a civil officer of emolument.

A deputy appointed by a county tax assessor-collector to assist in his duties is also an employee, not a civil officer of emolument. See Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Local Gov't Code ch. 151 (appointment of employees by a county officer). Because both positions are employment rather than office, article XVI, section 40 did not prevent one person from holding both.

The common-law doctrine of incompatibility does not bar one person from holding two public employments. See generally Attorney General Opinion JM-1047 (1989). So it did not prohibit this dual employment either.

The opinion then addressed the argument, based on Attorney General Opinion O-5070 (1943), that a court reporter must be full-time and cannot be appointed part-time. O-5070 had held that a district judge could not appoint the official court reporter to work part-time on a per diem basis, because the reporter's yearly salary was set by statute and no statute authorized part-time work at a lesser amount. But O-5070 relied on statutes since amended or repealed, see V.T.C.S. art. 2327a (1929, repealed 1947), and it dealt with a district court reporter, not a county court reporter. Section 52.046 of the Government Code describes the county court reporter's job in terms of duties performed on request (attending sessions, taking shorthand notes, preserving notes for three years, furnishing transcripts, and, for a county court, reporting contested probate testimony), not a required number of hours. No provision fixes a county court reporter's salary that must be paid regardless of the time required. Instead, the commissioners court sets the salary under chapter 152, subchapter B of the Local Government Code (formerly article 3912k, V.T.C.S.), Attorney General Opinion MW-487 (1982), and may set a salary commensurate with the hours worked, subject to the floor that it may not be less than the salary in effect on January 1, 1972. Local Gov't Code § 152.012. The opinion found no provision requiring the county court reporter to serve and be paid as a full-time employee regardless of the actual workload. See generally Attorney General Opinions JM-163 (1984); MW-415 (1981). Whether the deputy tax assessor-collector could meet the court reporter's work schedule was a fact question for the county judge, not a legal question for an opinion. Because the personnel-policy question the DA also raised was premised on the reporter being a required full-time employee, the opinion did not need to reach it. But see Attorney General Opinions JM-440 (1986); JM-182 (1984) (commissioners court may not set the hours of employees of other county officers).

Citations

Constitutional and statutory authorities:

• Texas Constitution art. XVI, § 40 (one civil office of emolument); § 30 (duration of offices); § 61 (officers pay fees into county treasury); art. III, § 56 (local laws creating offices); art. V, § 15 (county court is a court of record)
• Government Code § 52.041 (appointment of official court reporter); § 52.046 (powers and duties of court reporter)
• Local Gov't Code ch. 151 (appointment of employees by a county officer); § 152.012 (salary floor at January 1, 1972 level); ch. 152, subch. B (formerly V.T.C.S. art. 3912k) (commissioners court sets salaries)
• V.T.C.S. art. 2327a (1929, repealed 1947) (former district court reporter salary)

Cases:

• Robertson v. Ellis County, 84 S.W. 1097, 1099 (Tex. Civ. App. 1904, no writ) (stenographer is not an officer)
• Lightfoot v. Lane, 140 S.W. 89, 90 (Tex. 1911) (stenographer an employee, not an officer)
• Harris County v. Hunt, 388 S.W.2d 459, 467 (Tex. Civ. App. - Houston 1965, no writ)
• Tom Green County v. Proffitt, 195 S.W.2d 845, 847 (Tex. Civ. App. - Austin 1946, no writ)
• Green v. Stewart, 516 S.W.2d 133 (Tex. 1974) (deputy is an employee)

Attorney General materials referenced:

• Referenced: O-6491 (1945); O-5070 (1943); JM-1047 (1989); MW-487 (1982); JM-163 (1984); MW-415 (1981); JM-440 (1986); JM-182 (1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1083
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1083.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. A few garbled case names were confirmed by citation lookup and restored: Lightfoot v. Lane; Tom Green County v. Proffitt.

August 8, 1989

Honorable Galen Ray Sumrow
Criminal District Attorney
Rockwall County Courthouse
Rockwall, Texas 75087

Opinion No. JM-1083

Re: Whether an individual may be employed as a chief deputy for a county tax assessor-collector and as an official court reporter for a county court (RQ-1690)

Dear Mr. Sumrow:

You state that the person employed by Rockwall County as the county tax assessor-collector's chief deputy was formerly the official court reporter for the Rockwall County Court. She would like to know whether it would be legally possible for her to hold both positions.

We will first consider whether article XVI, section 40 of the Texas Constitution would prohibit one person from holding both positions. This provision states in part:

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

Tex. Const. art. XVI, § 40.

The following statute provides for the employment of a court reporter:

Each judge of a court of record shall appoint an official court reporter. An official court reporter is a sworn officer of the court and holds office at the pleasure of the court.

Gov't Code § 52.041. A county court is a court of record and is therefore subject to this provision. See Tex. Const. art. V, § 15.

A court reporter is not an officer within article XVI, section 30, of the Texas Constitution, which provides that the "duration of all offices not fixed by this Constitution shall never exceed two years . . . ." In Robertson v. Ellis County, 84 S.W. 1097 (Tex. Civ. App. 1904, no writ), the court held that an official stenographer appointed by the district court did not hold an office within this constitutional provision. Although the statute described the position of stenographer as an office and declared that the stenographer "shall be a sworn officer of the court," it did not confer on that person any sovereign functions of the judicial department of the government. 84 S.W. at 1099.

Other Texas courts have concluded that an official court reporter is not an officer within various other provisions. See Lightfoot v. Lane, 140 S.W. 89, 90 (Tex. 1911) (stenographer for Court of Civil Appeals was employee, not officer); Harris County v. Hunt, 388 S.W.2d 459, 467 (Tex. Civ. App. - Houston 1965, no writ) (court reporter was not an officer within article XVI, section 61, of the Texas Constitution requiring officers to pay fees into county treasury); Tom Green County v. Proffitt, 195 S.W.2d 845, 847 (Tex. Civ. App. - Austin 1946, no writ) (official court reporter is not a "public officer" within article III, section 56, prohibition against local laws creating offices). Finally, this office has concluded that a court reporter is not a civil officer of emolument within article XVI, section 40, of the constitution. Attorney General Opinion O-6491 (1945).1 A court reporter for a county court is not a civil officer of emolument.

A deputy appointed by a county tax assessor-collector to assist him in his duties is an employee, and not a civil officer of emolument. See Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Local Gov't Code ch. 151 (appointment of employees by county officer). Accordingly, article XVI, section 40, of the Texas Constitution does not prevent one person from holding both positions.

The common law doctrine of incompatibility does not bar one person from holding two public employments. See generally Attorney General Opinion JM-1047 (1989). The dual employment you inquire about is accordingly not prohibited by this doctrine.

You argue, based on Attorney General Opinion O-5070 (1943), that the position of an official court reporter is a full-time position, and that the judge may not appoint a part-time court reporter. Attorney General Opinion O-5070 determined that a district judge could not appoint the official court reporter to work part-time and be paid on a per diem basis. The official court reporter's yearly salary was set by statute and no statute authorized him to work part-time and receive a lesser amount.

Attorney General Opinion O-5070 is not dispositive of this matter. It relied on statutes that have since been amended or repealed. See V.T.C.S. art. 2327a (1929, repealed 1947) (setting salary of court reporter). Moreover, it dealt only with the court reporter of a district court and not the court reporter of a county court.

Section 52.046 of the Government Code, which states the powers and duties of an official court reporter, provides in part:

(a) On request, an official court reporter shall:

(1) attend all sessions of the court;

(2) take full shorthand notes of oral testimony offered before the court . . . ;

(3) take full shorthand notes of closing arguments if requested to do so by the attorney of a party to the case . . . ;

(4) preserve the notes for future reference for three years . . . ;

(5) furnish a transcript of the reported evidence or other proceedings . . . .

. . . .

(d) A judge of a county court or county court at law shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge's court. (Emphasis added.)

Gov't Code § 52.046.

The position of court reporter is described in terms of the duties to be performed, not of the number of hours of service required each week. The number of hours required to perform the job will depend upon the number of sessions the court reporter is requested to attend, record, and reduce to a written transcript and is likely to reflect the workload of the court with which the reporter is associated. No provision fixes a salary for a county court reporter that must be paid without regard to the amount of time required to perform the duties of the position. Instead, the commissioners court sets the salary of the court reporter in accordance with chapter 152, subchapter B of the Local Government Code, formerly article 3912k, V.T.C.S. Attorney General Opinion MW-487 (1982). The commissioners court may set a salary commensurate with the number of hours worked. See Local Gov't Code § 152.012 (salary may not be set at an amount less than the salary in effect on January 1, 1972).

We find no provision that expressly or impliedly requires the court reporter for the county court to serve as and be paid as a full-time employee, no matter how little work the job actually requires. See generally Attorney General Opinions JM-163 (1984) (secretary of Rockwall County criminal district attorney is not barred from serving from time to time as court reporter for Rockwall County court); MW-415 (1981) (service by one person as deputy county clerk and deputy district clerk of Dallas County). Whether a person who already serves as deputy tax assessor-collector will be able to meet the work schedule of the court reporter for the county court is a fact question to be considered by the county judge in making the appointment and not a legal question to be addressed in an attorney general opinion.

You ask whether your county personnel policy will be violated if one person holds both positions. Since this question is premised on a conclusion that a county court reporter must serve as a full-time employee, we need not address it. But see Attorney General Opinions JM-440 (1986); JM-182 (1984) (commissioners court may not set hours for employees of other county officers).

SUMMARY

Article XVI, section 40, of the Texas Constitution does not prohibit one person from serving as deputy tax assessor-collector of Rockwall County and court reporter of the Rockwall County Court. The position of official court reporter of the county court is not legally required to be a full-time position.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

Footnotes

[1] The court in Tom Green County v. Proffitt, 195 S.W.2d 845 (Tex. Civ. App. - Austin 1946, no writ) described Attorney General Opinion O-6491 as "a very able opinion" on the court reporter's status as an employee.