Can a Texas city police chief also hold the elected office of constable at the same time?

Plain-English summary

Hardin County Attorney Rebecca Walton told the AG that the City of Lumberton police chief had won the March primary for constable of Precinct 5, drew no general-election opponent, and would take office January 1, 2017. Lumberton sits in Precinct 5, so she asked whether the police chief could serve as both city police chief and precinct constable at the same time. She flagged two possible barriers: the Texas Constitution's prohibition on holding more than one civil office, and the common-law doctrine of incompatibility.

On the constitutional question, article XVI, section 40(a) says no person may hold more than one civil office of emolument (a paid position) at the same time. The ban applies only when both positions are "offices." The AG had consistently treated constable as a public office. Whether a municipal police chief is also an "office" turned on the test from the Aldine case: whether some sovereign function of government is conferred on the person to be exercised largely independent of the control of others. The county attorney told the AG that the Lumberton chief was employed by and served at the will of the city council, and the city's ordinances made the chief an appointed officer removable at the council's discretion. Because the chief could be removed at any time at the council's discretion, the AG concluded he did not act "largely independent of the control of others" and therefore did not hold an "office" under section 40. So the constitution did not bar the dual service.

On the common-law question, incompatibility has three branches: self-appointment, self-employment, and conflicting loyalties. The county attorney said the first two did not apply because neither position appoints or employs the other. The conflicting-loyalties branch, which comes from the 1927 Thomas v. Abernathy case, also applies only when both positions are "offices." Since the police chief was not a public officer under Aldine, that branch did not bar him from also serving as constable. The AG's bottom line: neither the constitutional dual-office rule nor the incompatibility doctrine stopped the Lumberton police chief from holding the constable position in the same precinct.

Currency note

This opinion was issued in 2016. 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 Hardin County Attorney (as the opinion described it): The opinion answered her question by concluding that neither article XVI, section 40 nor the common-law incompatibility doctrine barred the Lumberton police chief from simultaneously holding the office of constable in the same precinct.

The Lumberton police chief and city council (as the opinion described them): The opinion turned on the fact that the chief was employed by and served at the will of the city council and could be removed at its discretion, which is why it treated the chief as not holding an "office" under the controlling Aldine test.

Other Texas cities and precincts (as the opinion described the law): The opinion explained that whether a police chief is an "officeholder" depends on the Aldine test, not on a fixed rule, noting that older opinions had once treated police officers as officeholders as a matter of law but that the office had used the Aldine independence test for decades.

Common questions

Did the AG say a police chief can always also be a constable?
No. The answer in this opinion depended on the specific facts: the Lumberton chief served at the will of the city council and could be removed at its discretion, so he was not an "officeholder" under the Aldine test. A chief who exercised authority more independently could reach a different result.

What is the rule against dual office holding?
As the opinion described it, article XVI, section 40(a) of the Texas Constitution bars one person from holding more than one civil "office of emolument" (a paid public office) at the same time. It only applies when both positions are offices.

What is the doctrine of incompatibility?
The opinion explained that this common-law doctrine has three branches: self-appointment, self-employment, and conflicting loyalties. The conflicting-loyalties branch, from the 1927 Thomas v. Abernathy case, applies only when both positions are offices.

Why wasn't the police chief considered an officeholder?
Under the Aldine test, a person holds a public office only if a sovereign function is conferred on them to exercise largely independent of others' control. The opinion concluded the chief did not meet that test because the city council could remove him at any time at its discretion.

Is the constable position an office?
Yes. The opinion noted the AG had consistently treated the office of constable as a public office within article XVI, section 40. The question was only whether the police chief position was also an office, and the opinion concluded it was not on these facts.

Background and statutory framework

The Texas Constitution prohibits one person from holding more than one civil office of emolument at the same time, and that prohibition applies only where both positions are paid civil offices (Tex. Const. art. XVI, § 40(a); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994)). The AG had consistently treated constable as a public office within section 40 (Tex. Att'y Gen. Op. Nos. KP-0032 (2015), GA-0540 (2007)). Whether a municipal police chief is also an "officer" depends on whether a sovereign function is conferred to be exercised largely independent of the control of others (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)). The opinion relied on the city's own ordinance making the police chief an appointed officer removable at the council's discretion (Lumberton, Tex., Code of Ordinances ch. 3, § 3.08 (2016)) and on a prior opinion recognizing that a person whose employment may be terminated at will by a superior body is not a public officer (Tex. Att'y Gen. Op. No. GA-0393 (2006)).

The common-law doctrine of incompatibility has three aspects, of which only conflicting loyalties was at issue, and that aspect traces to a 1927 decision finding school trustee and city alderman incompatible (Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)). Like the constitutional rule, the conflicting-loyalties aspect applies only when both positions are offices (Tex. Att'y Gen. Op. No. KP-0032 (2015)). The opinion noted that earlier opinions had once treated municipal police chiefs as officeholders as a matter of law, including one concluding a chief could not also be constable in the same precinct, but that the office had shifted to the Aldine test for decades (Tex. Att'y Gen. L.O. 92-036 (1992); Tex. Att'y Gen. Op. Nos. JM-422 (1986), DM-212 (1993), GA-0393 (2006)).

Citations

Constitutional and local provisions:

• Tex. Const. art. XVI, § 40(a)
• Lumberton, Tex., Code of Ordinances ch. 3, § 3.08 (2016)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0032 (2015)
• Tex. Att'y Gen. Op. No. GA-0540 (2007)
• Tex. Att'y Gen. Op. No. GA-0393 (2006)
• Tex. Att'y Gen. Op. No. DM-212 (1993)
• Tex. Att'y Gen. L.O. 92-036 (1992)
• Tex. Att'y Gen. Op. No. JM-422 (1986)

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0122
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0122.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

December 12, 2016

The Honorable Rebecca R. Walton Opinion No. KP-0122
Hardin County Attorney
Courthouse, Second Floor Re: Simultaneous service as a municipal
Post Office Box 516 police chief and a constable (RQ-0112-KP)
Kountze, Texas 77625

Dear Ms. Walton:

     You tell us that the City of Lumberton police chief won the March primary election for constable of Precinct 5 and will take office on January 1, 2017, given that he drew no opponent for the November general election. [1] You state that Lumberton is located in Precinct 5. See Request Letter at 1. Thus, you ask whether the police chief may simultaneously serve as constable in that precinct. You raise two potential barriers to such dual service: the constitutional prohibition on dual office holding and the common-law doctrine of incompatibility.

    Article XVI, section 40(a) 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(a). The prohibition applies if both positions are civil offices 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. You state that both of the positions are compensated. Request Letter at 1. Thus, the applicability of the constitutional dual office holding prohibition turns on whether the two positions are "offices."

    The Attorney General has "consistently determined that the office of constable is a public office within the scope of article XVI, section 40." Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2; see also Tex. Att'y Gen. Op. No. GA-0540 (2007) at 2. Whether a municipal police chief is also a public officer within the meaning of article XVI, section 40, depends on "whether any sovereign function of the government is conferred upon the individual 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). You tell us that the Lumberton police chief "is employed by and serves at the will of the Lumberton City Council." Request Letter at 2; see also LUMBERTON, TEX., CODE OF ORDINANCES ch. 3, § 3.08 (2016) (providing that the police chief is an appointed city officer and that removal of such officers "shall be at the discretion of" the city council).

Because the police chief is subject to removal at any time at the discretion of the city council, he does not exercise his authority "largely independent of the control of others" and thus does not hold an "office" within the meaning of article XVI, section 40. See Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3 (recognizing the inapplicability of a "public officer" designation if the person's "actions are subject to control and his employment may be terminated at will by a superior body"). [2] Accordingly, the constitution does not prohibit the municipal police chief from simultaneously holding the office of constable in the same precinct in which Lumberton is located.

    The common-law doctrine of incompatibility has three aspects: self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. You explain that the first two aspects "do not apply in this situation because neither position appoints or employs the other." Request Letter at 2. The remaining aspect, conflicting loyalties, derives from the 1927 case of Thomas v. Abernathy County Line Independent School District, where the court found the offices of school trustee and city alderman to be incompatible:

             In our opinion the offices of school trustee and alderman are incompatible; for under our system there are in the city council or board of aldermen various directory or supervisory powers exertable in respect to school property located within the city or town and in respect to the duties of school trustee performable within its limits - e.g., there might well arise a conflict of discretion or duty in respect to health, quarantine, sanitary, and fire prevention regulations. If the same person could be a school trustee and a member of the city council or board of aldermen at the same time, school policies, in many important respects, would be subject to direction of the council or aldermen instead of to that of the trustees.

Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (citations omitted). Like the constitutional dual-office holding provision, the conflicting-loyalties aspect of incompatibility applies only when the two positions at issue are "offices." Tex. Att'y Gen. Op. No. KP-0032 (2015) at 2. Because the Lumberton police chief does not hold a "public office" under Aldine, the conflicting-loyalties aspect of the common-law doctrine of incompatibility does not bar him from simultaneously holding the position of constable in the same precinct.

                                 SUMMARY

                 Neither article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility bars the City of Lumberton police chief from simultaneously holding the position of constable in the same precinct where the city is located.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Rebecca R. Walton, Hardin Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 23, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Previously, opinions of this office concluded that city police officers, among others, held "office" within the meaning of article XVI, section 40 as a matter of law. See, e.g., Tex. Att'y Gen. L.O. 92-036 (1992) at 1; Tex. Att'y Gen. Op. No. JM-422 (1986) at 2 (concluding that the position of municipal police chief was an "office" that could not be held simultaneously with the office of constable in the same precinct). For decades, however, this office has instead used the Aldine test to determine whether a person holds an "office" within the meaning of article XVI, section 40. See Tex. Att'y Gen. Op. Nos. DM-212 (1993) at 2-5 (explaining the reasoning behind the shift to the Aldine test), GA-0393 (2006) at 3 & n.4.