Can a Texas school district police chief also serve as a county constable?

Plain-English summary

Anna D. Hord, the Hockley County Attorney, asked the AG a dual-office question. The chief of police for the local independent school district had put his name in for an open constable position covering the precinct that serves the district, and the county attorney worried the two jobs might be legally incompatible. She wanted to know whether one person could hold both at once.

The AG explained that Texas blocks a person from holding two jobs at once in two different ways: the Texas Constitution and the common law. Article XVI, section 40 of the Constitution says no one may hold "more than one civil office of emolument" at the same time, but that ban only kicks in when both positions are genuine public offices that pay something. The common-law incompatibility doctrine has three branches (self-appointment, self-employment, and conflicting loyalties), and the conflicting-loyalties branch likewise applies only when both positions are public offices.

So the whole question turned on whether each job is a "public office." Drawing on the Texas Supreme Court's Aldine test, the AG explained that a public officer is someone exercising a sovereign government function "largely independent of the control of others." A constable clears that bar; the AG's office had consistently treated the constable as a public office. A school district police chief does not. Earlier opinions had concluded that an ISD police chief is not a public office, because the chief answers to and is controlled by the school board and the superintendent, and the Education Code spells out that the board sets the scope of the chief's duties and that the chief is accountable to and reports to the superintendent. Because one of the two positions (the police chief) is not a public office, neither the constitutional dual-office ban nor the conflicting-loyalties doctrine applied, and the AG concluded the chief is not prohibited from also serving as constable.

The AG closed with a practical caveat in a footnote: even though the law does not bar holding both, the commissioners court that fills the constable vacancy still has to decide whether the demands of the police-chief job would keep this person from adequately serving as constable.

Currency note

This opinion was issued in 2015. 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.

What the opinion meant for those who asked

The Hockley County Attorney and the commissioners court (as the opinion described it): The opinion described the dual role as legally permitted, concluding that neither the constitutional ban nor the common-law incompatibility doctrine prohibited an ISD police chief from also serving as constable. It described the commissioners court, in filling the constable vacancy, as still having to determine whether the individual's police-chief duties would affect his ability to adequately serve as constable.

School district police chiefs (as the opinion described it): The opinion described an ISD police chief as not holding a "public office" for purposes of article XVI, section 40 or the conflicting-loyalties doctrine, because the chief is controlled by and accountable to the school board and superintendent under the Education Code. On that basis it described the chief as free, as a matter of incompatibility law, to hold the office of constable at the same time.

Constables (as the opinion described it): The opinion described the office of constable as a public office within the scope of article XVI, section 40, consistent with prior opinions. That status mattered to the analysis, but because the other position was not a public office, the dual-office rules were not triggered.

Common questions

Can a Texas school district police chief also be a constable at the same time?
The AG concluded yes. Neither the Texas Constitution's ban on holding two civil offices of emolument nor the common-law incompatibility doctrine prohibits it, because one of the two roles (the school district police chief) is not a public office under Texas law.

Why isn't a school district police chief a "public office"?
Because the chief does not act "largely independent of the control of others," which is the test for a public officer. The AG explained that the chief answers to and is controlled by the school board and the superintendent, and that the Education Code makes the board responsible for setting the scope of the chief's duties and makes the chief accountable to and reporting to the superintendent.

Isn't holding two government jobs usually banned in Texas?
Only when both jobs are public offices that pay an emolument (for the constitutional ban) or both are public offices (for the conflicting-loyalties doctrine). Here, because the police-chief role is not a public office, the AG concluded those rules did not apply.

Does this mean the chief automatically gets the constable job?
No. The AG noted that the commissioners court, in appointing someone to fill the constable vacancy, still has to determine whether the person's police-chief duties would affect his or her ability to adequately serve as constable. The opinion addressed legal incompatibility, not whether the appointment is a good idea in practice.

Background and statutory framework

The question was whether an independent school district police chief could simultaneously hold the office of constable for the precinct serving the district. Texas incompatibility law comes from two sources. Article XVI, section 40 of the Texas Constitution bars a person from holding "more than one civil office of emolument" at the same time, and applies only where both positions are civil (public) offices entitled to an emolument, meaning "a pecuniary profit, gain, or advantage" (Tex. Const. art. XVI, § 40; State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)). A "civil office" for this purpose is a "public office" (Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)).

Whether a position is a public office turns on the Texas Supreme Court's test in Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955): a public officer is one on whom a sovereign function of government is conferred to be exercised "largely independent of the control of others," which looks to whether the officer's actions are subject to others' control and whether the position can be terminated at will by a superior body. Applying that test, prior opinions had treated the office of constable as a public office, but had treated an ISD police chief as not a public office, because the chief answers to and is controlled by the school board and the superintendent. The Education Code reinforces that control: the district's board of trustees sets the scope of the peace officer's duties, and the chief of police "shall be accountable to the superintendent and shall report to the superintendent" (Tex. Educ. Code Ann. § 37.081(a), (e), (f)). Because the police-chief position is not a public office, the constitutional dual-office ban did not apply.

The common-law incompatibility doctrine has three aspects: self-appointment, self-employment, and conflicting loyalties. Because neither position here hires, employs, or supervises the other, only the conflicting-loyalties aspect was potentially relevant, and that aspect, like the constitutional ban, applies only where both positions are offices under the Aldine analysis. Because the police chief is not a public officer, the AG concluded the conflicting-loyalties doctrine did not bar the dual role either. The AG noted as a practical matter that the commissioners court filling the constable vacancy must still assess whether the police-chief duties would impair the individual's ability to serve adequately as constable.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40 (prohibition on holding more than one civil office of emolument)
• Tex. Educ. Code Ann. § 37.081(a), (e), (f) (scope of school district police duties; chief accountable to and reporting to the superintendent)

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)
• Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. GA-1083 (2014), GA-0688 (2009), GA-0569 (2007), GA-0540 (2007), GA-0402 (2006), GA-0393 (2006), GA-0214 (2004), DM-212 (1993), JM-480 (1986), MW-415 (1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0032
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0032.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 10, 2015

The Honorable Anna D. Hord Opinion No. KP-0032
Hockley County Attorney
802 Houston, Suite 211 Re: Whether an independent school district
Levelland, Texas 79336 police chief may simultaneously serve as a
constable in the precinct in which the school
district is located (RQ-0012-KP)

Dear Ms. Hord:

You tell us that the school district chief of police has submitted his name to the county commissioners court for appointment to a vacant constable position for the precinct that serves the school district. [1] Concerned that the two positions might be incompatible, you ask whether the chief of police of an independent school district may simultaneously hold the office of constable in the precinct in which the school district is located. Request Letter at 1.

Incompatibility of office derives from the Texas Constitution and the common law. Article XVI, section 40 of the Texas Constitution 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. This prohibition applies if both positions are civil offices that are entitled to an emolument. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). An emolument is "a pecuniary profit, gain, or advantage." Id. We presume that both positions about which you ask are compensated, so we consider the nature of the two positions.

For purposes of article XVI, section 40, a "civil office" is a "public office." See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.) ("We see no difference in the meaning of public office and civil office."); see also Tex. Att'y Gen. Op. Nos. GA-0214 (2004) at 2, JM-480 (1986) at 1, MW-415 (1981) at 1-2. A public officer is one upon whom "any sovereign function of the government" has been conferred "to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). The Aldine analysis involves a determination of whether the actions and decisions of the officer are subject to the control of others, and whether the employment may be terminated at will by a superior body: It cannot be said that an officer subject to such control exercises authority "largely independent of the control of others." Id. at 583; see also Tex. Att'y Gen. Op. Nos. GA-0688 (2009) at 2, GA-0393 (2006) at 3.

Relevant here, opinions from this office have already addressed the nature of both of the positions about which you ask. We have consistently determined that the office of constable is a public office within the scope of article XVI, section 40. See Tex. Att'y Gen. Op. Nos. GA-0540 (2007) at 2, GA-0402 (2006) at 1. Moreover, we have previously determined that the office of a school district police chief is not a public office to which article XVI, section 40 applies because the school district police chief answers to, and is subject to the control of, the school board and the superintendent. See Tex. Att'y Gen. Op. No. GA-0688 (2009) at 2; TEX. EDUC. CODE ANN. § 37.081(a), (e), (f) (West Supp. 2014) (detailing that the scope of a peace officer's duties are established by the independent school district's board of trustees and providing that that chief of police "shall be accountable to the superintendent and shall report to the superintendent"); see also Tex. Att'y Gen. Op. No. DM-212 (1993) at 2, 5. Accordingly, a school district police chief is not prohibited by the constitution from simultaneously holding the office of constable in the precinct in which the school district is located.

The common-law doctrine of incompatibility has three aspects: self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-1083 (2014) at 2. Because neither office involved here hires, employs, or supervises the other, the dispositive issue involves the conflicting-loyalties aspect. See Tex. Att'y Gen. Op. No. GA-0688 (2009) at 1. Yet, as with article XVI, section 40, conflicting-loyalties incompatibility applies only when the two positions are both officers under the Aldine analysis. See Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3. The fact that a school district chief of police is not a public officer warrants the same conclusion with respect to conflicting-loyalties incompatibility: The school district police chief is not prohibited from simultaneously serving as a constable in the school district's precinct. [2]

SUMMARY

Neither the Texas Constitution nor the common-law doctrine of incompatibility prohibits an independent school district police chief from simultaneously serving as a constable in the precinct in which the school district is located.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Anna D. Hord, Hockley Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 9, 2015), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] As a practical matter, the commissioners court, in appointing this individual to fill the constable vacancy, must determine whether the duties the individual must perform as a school district's police chief will impact his or her ability to adequately serve as constable. See generally Tex. Att'y Gen. Op. No. GA-0569 (2007) at 3.