Can a Texas deputy sheriff also serve on a city council at the same time?

Plain-English summary

The Culberson County Attorney, Stephen Mitchell, asked the Attorney General a dual-officeholding question. A serving deputy sheriff of Culberson County had run for and won a seat as alderman on the Van Horn town council, the county seat, and was now drawing monthly pay from both the county (as chief deputy sheriff) and the town (as alderman). The county attorney wanted to know whether holding both positions was barred, and whether a 1975 letter advisory (LA-112) that said it was still controlled.

The AG walked through the three doctrines that can block one person from holding two government positions and concluded that none of them applies here. First, the separation-of-powers clause in article II, section 1 of the Texas Constitution. An old line of opinions had read that clause to reach local offices, but the Texas Supreme Court settled the question in City of Fort Worth v. Zimlich, holding that article II, section 1 guarantees only the separation of the state legislative, executive, and judicial branches. It does not apply to local government officers, so it does not stop a deputy sheriff from sitting on a city council. The AG expressly overruled LA-112 and the older Opinions H-6 and H-7 to the extent they said otherwise.

Second, the dual-officeholding ban in article XVI, section 40, which bars one person from holding more than one "civil office of emolument." That prohibition applies only if both positions are public offices. The test for a public office is whether the person exercises a sovereign function of government largely independent of the control of others. A deputy sheriff acts at the direction and pleasure of the sheriff under Local Government Code section 85.003(c), so a deputy does not hold a public office, and article XVI, section 40 does not apply. Third, the common-law incompatibility doctrine, which keeps one person from holding two offices with conflicting duties, likewise applies only when each position is an office. Because a deputy sheriff does not hold an office, incompatibility does not apply either. The bottom line: none of the three doctrines prevents a deputy sheriff from simultaneously serving as a city councilmember.

What this means for you

This describes what the 2021 opinion holds about a deputy sheriff serving on a city council. The opinion is now several years old, and the constitutional and statutory rules it relies on can change, so confirm current law before relying on this.

Deputy sheriffs and city councils

Based on this opinion, a deputy sheriff who wins a city council seat is not barred by separation of powers, by the constitutional dual-officeholding ban, or by common-law incompatibility, because a deputy sheriff is not treated as holding a public office. The result rests on a deputy acting under the sheriff's direction and control.

County and city officials

The opinion treats the deputy-versus-office distinction as the hinge. A position whose holder exercises a sovereign function independently would be an office and could trigger these bars, but a deputy sheriff does not. The opinion does not address other restrictions, such as local charter rules or conflict-of-interest statutes, that might still apply.

Anyone relying on Letter Advisory 112

The opinion expressly overrules LA-112 (and Opinions H-6 and H-7) to the extent they applied article II, section 1 separation of powers to local offices. An earlier reading that a deputy sheriff could not also serve on a city council no longer reflects the office's position.

Common questions

Q: Can the same person be a sheriff's deputy and a city council member in Texas?
A: Yes, under this opinion. The AG concluded that none of the three doctrines that bar dual service applies, because a deputy sheriff does not hold a public office.

Q: Why isn't this barred by the dual-officeholding rule in the constitution?
A: Article XVI, section 40 applies only when both positions are public offices. A deputy sheriff acts at the direction and pleasure of the sheriff, so the deputy does not exercise a sovereign function independently and does not hold an office.

Q: Doesn't separation of powers stop someone from holding executive and legislative roles?
A: At the state level, yes, but the Texas Supreme Court held in Zimlich that article II, section 1 reaches only state government, not local officers. So it does not bar a deputy sheriff from sitting on a city council.

Q: Is the old Letter Advisory 112 still good law?
A: No. The AG overruled LA-112 (and Opinions H-6 and H-7) to the extent they applied separation of powers to local offices.

Background and statutory framework

Three legal doctrines can prevent one person from holding two government positions at once. The separation-of-powers clause in article II, section 1 of the Texas Constitution divides the state's legislative, executive, and judicial powers. The dual-officeholding clause in article XVI, section 40 bars holding "more than one civil office of emolument." And the common-law incompatibility doctrine bars holding two offices with conflicting duties. The constitutional and common-law office-based bars both turn on whether a position is a public "office," defined by whether the holder exercises a sovereign function largely independent of others' control. The Texas Supreme Court applied that test in State ex rel. Hill v. Pirtle. A deputy sheriff, by contrast, acts at the sheriff's direction and pleasure under Local Government Code section 85.003(c), so prior opinions (KP-0189, GA-0470, GA-0402) had already concluded a deputy is not an officeholder. The opinion adds the separation-of-powers piece, relying on City of Fort Worth v. Zimlich and A.H.D. Houston to confine article II, section 1 to state government, and overrules the contrary older authorities.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. II, § 1 (separation of powers, state government only)
• Tex. Const. art. XVI, § 40(a) (one civil office of emolument)
• Tex. Loc. Gov't Code § 85.003(c) (deputy sheriff acts at the sheriff's direction and pleasure)

Key cases:

• City of Fort Worth v. Zimlich, 29 S.W.3d 62 (Tex. 2000) (article II, section 1 separates only the state branches)
• A.H.D. Houston, Inc. v. City of Houston, 316 S.W.3d 212 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (separation of powers applies to state, not local, government)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994) (test for a public office: sovereign function largely independent of others' control)
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted) (common-law incompatibility applies only between two offices)

Related AG opinions:

• Tex. Att'y Gen. Op. No. KP-0189 (2018); GA-0470 (2006); GA-0402 (2006) (a deputy sheriff does not hold a public office)
• Tex. Att'y Gen. LA-112 (1975); Op. Nos. H-6 (1973), H-7 (1973) (overruled in part to the extent they applied separation of powers to local offices)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0352
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-03524.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 3, 2021

The Honorable Stephen L. Mitchell
Culberson County Attorney
Post Office Box 276
Van Horn, Texas 79855

Opinion No. KP-0352

Re: Whether a deputy sheriff may simultaneously serve as an elected alderman of a Type-A general-law city (RQ-0370-KP)

Dear Mr. Mitchell:

You ask whether a deputy sheriff may simultaneously serve as an elected alderman of a Type-A general-law city.¹ You tell us that a serving deputy sheriff of Culberson County (the "County") ran for and was elected to the office of alderman on the city council of the town of Van Horn (the "Town"), the county seat of the County. Request Letter at 1. You explain that the individual, now promoted to chief deputy sheriff, receives monthly compensation from both the County as chief deputy sheriff and from the Town as alderman. Id. You explain that the individual's simultaneous service in the two positions raises issues about dual officeholding and constitutional or common-law limitations on holding two positions. Id. You also ask whether Attorney General Letter Advisory 112 resolves the issue. Id. (citing Tex. Att'y Gen. LA-112 (1975)).

Letter Advisory 112 concluded that the separation of powers doctrine of article II, section 1 of the Texas Constitution precludes one person from simultaneously serving as deputy sheriff and city councilmember. Tex. Att'y Gen. LA-112 (1975) at 2. The letter advisory relied on Attorney General Opinions H-6 and H-7.² Id. at 1–2. However, a subsequent attorney general opinion questioned H-6 and H-7 in part because "the language of article II, section 1 might be construed as applying only to state level offices, and not to offices of political subdivisions." Tex. Att'y Gen. Op. No. JM–213 (1984) at 4. More recently, a Texas Supreme Court opinion definitively settled the question, holding that the separation of powers doctrine in article II, section 1 of the Texas Constitution "only guarantees the separation of the state legislative, executive, and judicial branches of government." City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000). Therefore, the separation of powers provisions of article II, section 1 does not apply to officers of local government. See A.H.D. Houston, Inc. v. City of Houston, 316 S.W.3d 212, 222 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("The separation of powers provision of the Texas Constitution applies only to the branches of state, not local, government."). Accordingly, article II, section 1 of the Constitution does not prevent a deputy sheriff from simultaneously serving as a member of a city council.³

We now turn to the dual-officeholding prohibition of article XVI, section 40 of the Texas Constitution. Article XVI, section 40 provides that, with exceptions not pertinent here, "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40(a). However, the prohibition applies only if both positions are "civil offices of emolument" within the meaning of the constitutional provision. State ex. rel. Hill v. Pirtle, 887 S. W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). The distinguishing factor of a public "office" subject to article XVI, section 40, is whether the person exercises a sovereign function of the government "largely independent of the control of others." Id. A deputy sheriff acts at the direction and pleasure of the sheriff. TEX. LOC. GOV'T CODE § 85.003(c). Because a deputy sheriff does not exercise a sovereign function largely independent of the control of others, a deputy sheriff does not hold a public office for purposes of article XVI, section 40. See Tex. Att'y Gen. Op. Nos. KP-0189 (2018) at 2, GA-0470 (2006) at 4, GA-0402 (2006) at 1. Accordingly, article XVI, section 40 does not preclude a person from simultaneously holding the positions of deputy sheriff and city councilmember. Tex. Att'y Gen. Op. No. KP-0189 (2018) at 2.

Finally, simultaneously holding two offices may implicate the common-law incompatibility doctrine, which prevents one person from holding two public offices with inconsistent or conflicting duties. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928); Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted). But like the constitutional prohibition on dual officeholding, the common-law doctrine of incompatibility prevents a person from holding two positions only when each position constitutes an office. See Thomas, 290 S.W. at 152–53. Prior opinions of this office conclude that because a deputy sheriff does not hold an office, the common-law doctrine of incompatibility does not apply. See Tex. Att'y Gen. Op. Nos. KP-0189 (2018) at 2; GA-0470 (2006) at 4, GA-0402 (2006) at 1. In sum, neither the separation of powers provision of article II, section 1 of the Texas Constitution, nor the dual-officeholding prohibition in article XVI, section 40, nor the common-law incompatibility doctrine precludes a deputy sheriff from simultaneously serving as a city councilmember.

¹ See Letter from Honorable Stephen L. Mitchell, Culberson Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 5, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0370KP.pdf ("Request Letter").

² See Tex. Att'y Gen. Op. Nos. H-6 (1973) at 3 (concluding that article II, section 1 of the Texas Constitution barred a public school instructor from serving on the commissioners court), H-7 (1973) at 3 (concluding that article II, section 1 precludes appointment of a state or county judge or a legislator as a special Texas ranger). A later attorney general opinion overruled attorney general opinion H-6 on related grounds, determining that "article II, section 1 'ordinarily' does not play a role in dual-officeholding matters. See Tex. Att'y Gen. Op. No. JC-0074 (1999) at 2.

³ We overrule Letter Advisory 112 and Attorney General Opinions H-6 and H-7 to the extent they conclude that the separation of powers doctrine in article II, section 1 of the Texas Constitution applies to offices other than those in the state legislative, executive, and judicial branches of government.

S U M M A R Y

The separation of powers provision of article II, section 1 of the Texas Constitution does not apply to officers of local government. The dual-officeholding prohibition of article XVI, section 40 of the Texas Constitution and the common-law doctrine of incompatibility prevent, in certain circumstances, one person from simultaneously holding two public offices. A deputy sheriff does not hold such an office because a deputy sheriff does not exercise a sovereign function largely independent of the control of others. Thus, neither the separation of powers provision of article II, section 1 of the Constitution, nor the dual-officeholding prohibition in article XVI, section 40, nor the common-law incompatibility doctrine preclude a deputy sheriff from simultaneously serving as a city councilmember.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff
Acting Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee