Can a city council member in a general-law city also serve on the city's police reserve?

Texas AG Opinion JM-386: Alderman Can't Join Police Reserve

Plain-English summary

A state representative asked the Attorney General a clean yes-or-no question: can an alderman on the city council of a general law city also serve as a member of that same city's police reserve? The answer was no, and the reason is the common law doctrine of incompatibility. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

The incompatibility doctrine prevents one person from holding two public positions when the duties conflict or when one position is subordinate to the other. Here the two positions were not equals. The statute that authorizes a police reserve force (article 998a) gives the city council heavy control over it: the council decides whether to create the force and how big it is, sets the qualifications and training standards, decides whether reserve members are paid and whether they get hospital and medical benefits, and, critically, must approve a reserve member before that member may carry a weapon or act as a peace officer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Because the reserve force answers to the city council in all of those ways, a reserve member is subordinate to the council. An alderman sits on that council. Letting the alderman also serve on the reserve would put the same person on both sides of that supervisory relationship, which is exactly what the incompatibility doctrine forbids. The Attorney General added that incompatibility also bars a public officer from appointing himself to a position he has the power to appoint, and the council's approval role over reserve members resembles a shared appointment power. So the alderman could not serve on the reserve. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Currency note

This opinion was issued in 1985 and applied the common law incompatibility doctrine to article 998a, V.T.C.S., the police reserve force statute then in effect. That statute has since been recodified into the Texas Local Government Code and the Code of Criminal Procedure, and the numbering has changed. Treat this page as historical context, not current legal advice.

Common questions

Why can't a council member also be a police reserve officer?

Because of the incompatibility doctrine. The Attorney General concluded the city council supervises the police reserve so extensively, and must approve reserve members before they act as peace officers, that a reserve member is subordinate to the council. A council member cannot hold both the supervising office and the subordinate one. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

What is the doctrine of incompatibility?

It is a common law rule that prevents one person from holding two offices when their duties conflict or when one office is subordinate to the other. The AG also noted a related branch: a public officer cannot appoint himself to a position over which he holds the appointment power. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Doesn't the police chief, not the council, appoint reserve members?

The chief appoints them, but a reserve member cannot exercise peace officer powers until the city council approves the appointment. The AG treated that approval role as resembling a shared power to appoint, which is enough to make the council's involvement a problem under the incompatibility doctrine. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Background and statutory framework

Article 998a, V.T.C.S., let a city's governing body establish a police reserve force and gave the council extensive control: it establishes the force and limits its size, sets qualifications and training standards, decides on compensation and on hospital and medical assistance, and must approve a member before he may carry a weapon or act as a peace officer. Reserve members serve at the discretion of the chief of police but act only in a supplementary capacity to the regular force. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Against that statutory backdrop, the AG applied the incompatibility doctrine, which prevents one person from holding two offices whose duties conflict or where one is subordinate to the other (Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgmt adopted); Kugle v. Glen Rose Independent School District No. 1, 50 S.W.2d 375 (Tex. Civ. App. - Waco 1932), rev'd on other grounds sub nom. Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935); State v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ)). A related strand bars a public officer from appointing himself to a position over which he holds the appointive power (Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App. - San Antonio 1956, no writ)). Because a reserve member cannot act as a peace officer until the council approves him (V.T.C.S. art. 998a(c)), and because the council otherwise supervises and holds the reserve accountable, a council member could not also serve on the reserve. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Citations and references

• Article 998a, V.T.C.S.; §998a(c)
• Article 995, Revised Civil Statutes of Texas, 1925
• Chapter 86, Acts of the 60th Legislature, Regular Session, 1967 (Article 6228f, Vernon's Texas Civil Statutes)
• Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgmt adopted)
• Kugle v. Glen Rose Independent School District No. 1, 50 S.W.2d 375 (Tex. Civ. App. - Waco 1932), rev'd on other grounds sub nom. Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935)
• State v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ)
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App. - San Antonio 1956, no writ)
• Attorney General Opinions JM-203 (1984), V-303 (1947); Letters Advisory Nos. 114 (1975), 156, 152 (1978)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0386
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0386.pdf

Original opinion text

Transcribed from the scanned PDF by OCR. Character-level scanning errors have been cleaned; the wording, citations, and substance are reproduced as issued.

The Attorney General of Texas

December 2, 1985

Honorable Terral R. Smith
Chairman
Committee on Criminal Jurisprudence
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-386

Re: Whether an alderman of a general law city may serve as a member of that city's police reserve

Dear Representative Smith:

You request an opinion on the following question:

Can an alderman on the city council of a general law city legally serve as a member of that same city's police reserve?

Article 998a, V.T.C.S., authorizes a general law city to establish a police reserve force:

(a) The governing body of any city, town, or village may provide for the establishment of a police reserve force. Members of the police reserve force, if authorized, shall be appointed at the discretion of the chief of police and shall serve as peace officers during the actual discharge of official duties. . . .

(b) The governing body shall establish qualifications and standards of training for members of the police reserve force, and may limit the size of the police reserve force.

(c) No person appointed to the police reserve force may carry a weapon or otherwise act as a peace officer until he has been approved by the governing body. After approval, he may carry a weapon only when authorized by the Chief of Police, and when discharging official duties as a duly constituted peace officer.

(d) Members of the police reserve force serve at the discretion of the chief of police and may be called into service at any time the chief of police considers it necessary to have additional officers to preserve the peace and enforce the law.

(e) Members of the police reserve force may serve without compensation but the governing body may provide uniform compensation for members of the police reserve force. The compensation shall be based solely upon time served by a member of the police reserve force while in training for, or in the performance of, official duties.

(f) The governing body may provide hospital and medical assistance to a member of the police reserve force who sustains injury in the course of performing official duties in the same manner as provided by the governing body for a full time police officer, and reserve officers shall be eligible for death benefits as set out in Chapter 86, Acts of the 60th Legislature, Regular Session, 1967, as amended (Article 6228f, Vernon's Texas Civil Statutes), provided, however, that nothing in this Act shall be construed to authorize or permit a member of the police reserve force to become eligible for participation in any pension fund created pursuant to State statute to which regular officers may become a member by payroll deductions or otherwise.

(g) Reserve police officers shall act only in a supplementary capacity to the regular police force and shall in no case assume the full time duties of regular police officers without first complying with all requirements for such regular police officers.

(h) This Act does not limit the power of the mayor of any general-law city to summon into service a special police force, as provided by Article 995, Revised Civil Statutes of Texas, 1925. (Emphasis added).

The city council has considerable supervisory power over the police reserve. The council establishes the force and determines its size. It sets qualifications and training standards for members and determines whether they shall receive compensation and hospital and medical assistance. No individual member of the police reserve force may carry a weapon or otherwise act as a police officer until he has been approved by the city council. Id.

In our opinion, the common law doctrine of incompatibility prohibits an alderman on the city council of a general law city from serving as a member of the city's police reserve. This doctrine prevents one person from holding two offices if the duties are in conflict or if one is subordinate to the other. Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgmt adopted); Kugle v. Glen Rose Independent School District No. 1, 50 S.W.2d 375 (Tex. Civ. App. - Waco 1932), rev'd on other grounds sub nom. Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935); Attorney General Opinions JM-203 (1984); V-303 (1947). See also State v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ). Considerations of incompatibility also bar a public officer from appointing himself to an office or employment over which he holds the appointive power. Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Attorney General Letter Advisory No. 114 (1975); see also Starr County v. Guerra, 297 S.W.2d 379 (Tex. Civ. App. - San Antonio 1956, no writ). Although a member of the reserve is appointed by the police chief, he may not exercise the powers of a peace officer until the city council approves his appointment. V.T.C.S. art. 998a(c). The city council's approval power resembles a shared power to appoint. See generally Attorney General Letters Advisory Nos. 156, 152 (1978) (discussion of shared power to appoint in context of nepotism question). In view of the city council's supervision and other authority over members of the police reserve force, and the accountability of police reserve force members to the city council, a member of the city council may not serve on the city's police reserve.

SUMMARY

Article 998a, V.T.C.S., gives the city council considerable supervisory authority over members of the police reserve force and makes the force accountable to the city council. The common law doctrine of incompatibility therefore bars an alderman on the city council of a general law city from also serving as a member of the city's police reserve.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Bruce Youngblood