Could a Texas constable appointed to fill a vacancy request a hearing before the county salary grievance committee?

Texas AG Opinion JM-277: Appointed Constable Grievance

Plain-English summary

Van Zandt County asked whether an appointed constable counted as an “elected county or precinct officer” for article 3912K's salary-grievance procedure. The constable had been appointed to fill the vacancy left when an elected constable was temporarily suspended by a district court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

JM-277 concluded that the grievance provision applied to anyone holding the office of constable, whether the person reached the office by general election or by appointment to a vacancy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

The opinion read the word “elected” as describing the constitutional office rather than only the current officeholder's route into office. A literal distinction between elected and appointed constables would not serve the legislative purpose of the salary-grievance statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

JM-277 drew an analogy to Attorney General Opinion MW-111, which treated an exemption for an “elected” sheriff or constable as attached to the constitutional office. That earlier opinion reasoned that a different reading would create one set of qualifications for an appointee and another for a person chosen by popular election. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Currency note

This opinion was issued in 1984. 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.

Common questions

Could the appointed constable request a salary-grievance hearing?

Yes. JM-277 held that article 3912K applied equally to an appointed constable and an elected constable. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Did the word “elected” exclude all appointed officeholders?

No. In this context, the opinion construed “elected county or precinct officer” to refer broadly to the elected office itself. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

What triggered the grievance right under the quoted statute?

An officer aggrieved by the setting of salary or personal expenses could request a hearing within five days after notification. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Why did the Attorney General reject a literal reading?

The opinion said statutory words could be extended or restricted when necessary to carry out legislative intent. Treating appointed and elected holders of the same constitutional office differently would not fit article 3912K's purpose. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

How did Attorney General Opinion MW-111 support the result?

MW-111 concluded that an exemption for constitutional law-enforcement offices applied whether a sheriff held office by election or appointment. JM-277 applied the same office-based reasoning to a constable's grievance right. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Background and statutory framework

Section 2(e) of article 3912K allowed an elected county or precinct officer aggrieved by salary or personal-expense decisions to request a hearing before the salary grievance committee within five days after notice. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

The opinion cited National Surety Corp. v. Ladd for construing statutes to give effect to legislative intent. It cited Lunsford v. City of Bryan and City of Mason v. West Texas Utilities Company for extending or restricting words beyond their natural import when necessary to carry out the statutory purpose. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Attorney General Opinion MW-111 had interpreted article 4413(29aa)'s exemption for sheriffs, constables, and other constitutionally elected law-enforcement officers. It concluded that the exemption followed the office even when the current officer was an appointee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Citations and references

• Section 2(e) of article 3912K, V.T.C.S.
• Article 4413(29aa), V.T.C.S., section 6(f)
• National Surety Corp. v. Ladd, 115 S.W.2d 600, 603 (Tex. 1938)
• Lunsford v. City of Bryan, 297 S.W.2d 115, 117 (Tex. 1957)
• City of Mason v. West Texas Utilities Company, 237 S.W.2d 273, 274 (Tex. 1951)
• Attorney General Opinion MW-111 (1979)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0277
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0277.pdf

Original opinion text

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

The Attorney General of Texas

December 28, 1984

Honorable Tommy W. Wallace
Criminal District Attorney
Van Zandt County Courthouse
Canton, Texas 75103

Opinion No. JM-277

Re: Whether a constable who has been appointed to fill a vacancy is authorized to call a meeting of a county grievance committee

Dear Mr. Wallace:

You have asked whether the phrase “elected county or precinct officer” as used in section 2(e) of article 3912K, V.T.C.S., includes a county constable who has been appointed to fill the vacancy left by an elected constable who has been temporarily suspended from office by the district court. Article 3912K, section 2(e) provides:

Any elected county or precinct officer who is aggrieved by the setting of his salary or personal expenses may within 5 days of his notification request a hearing before the salary grievance committee. . . .

We conclude that article 3912K, section 2(e) applies equally to anyone who holds the office of constable whether he has been elected in a general election or appointed to fill a vacancy.

In general, statutory language will be construed to give effect to the legislative intent. National Surety Corp. v. Ladd, 115 S.W.2d 600, 603 (Tex. 1938). When necessary to fulfill the legislative intent and to effectuate the legislative purpose, the meaning of words will be extended beyond or restricted within their natural import. Lunsford v. City of Bryan, 297 S.W.2d 115, 117 (Tex. 1957); City of Mason v. West Texas Utilities Company, 237 S.W.2d 273, 274 (Tex. 1951). It is our opinion that it would not comport with the legislative intent behind article 3912K to construe the language of the statute literally, thereby distinguishing constables who have been elected to office from those who have been appointed to fill vacancies.

In Attorney General Opinion MW-111 (1979), this office discussed the status of a person appointed to the constitutional office of sheriff to fill an unexpired term. The question addressed in the opinion concerned the applicability of article 4413(29aa), V.T.C.S. to a sheriff appointee. Article 4413(29aa) created the Commission on Law Enforcement Officer Standards and Education which sets standards for law enforcement officers in the state. The provisions of article 4413(29aa) are qualified by the specific exemption found in section 6(f):

Nothing herein shall be construed . . . to affect any sheriff, constable or other law enforcement officer elected under the provisions of the Constitution of the State of Texas.

In Attorney General Opinion MW-111 (1979), this office construed section 6(f) to exempt from certification those persons occupying constitutional law enforcement offices. The opinion concluded that because the constitutional office itself was excepted from article 4413(29aa), it was immaterial that a person held the position by appointment rather than by popular election, despite the literal language of the provision. Thus, both elected and appointed sheriffs are exempted. The opinion reasoned as follows:

[I]f the statute were construed otherwise, the requirements of the statute would constitute qualifications for the office. There would be one set of qualifications for the office if occupied by an appointee, and another set for it if occupied by a person popularly elected to it.

Attorney General Opinion MW-111 (1979).

Analogously, we conclude that the phrase “elected county or precinct officer” as used in article 3912K must be construed broadly to refer to the elected office itself; anyone holding the office of constable may request a hearing before the grievance committee regardless of the manner by which the constable attained his office.

SUMMARY

A constable may request a hearing before a salary grievance committee pursuant to article 3912K, V.T.C.S., whether he has been elected or appointed to his office.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs