Can a Texas county sheriff also serve as a city fire marshal at the same time?

Plain-English summary

The Burleson County Attorney, Susan Deski, asked the Attorney General a question on the county sheriff's behalf: could the sheriff also take on the role of fire marshal for the City of Caldwell without violating either article XVI, section 40 of the Texas Constitution (the dual-office-holding ban) or the common-law doctrine of incompatibility? Both doctrines share a threshold requirement, which is that the person hold two public offices. So the whole analysis turned on whether a municipal fire marshal is an "office."

The AG started with the constitutional rule. Article XVI, section 40(a) says no person may hold more than one civil office of emolument at the same time, and an emolument is a pecuniary profit or advantage. A sheriff is a constitutional officer who receives a salary, so the sheriff clearly holds an office of emolument. The Caldwell fire marshal also draws a salary, which left only one open question: is the fire marshal an officer or a public employee? Under the test from Aldine Indep. Sch. Dist. v. Standley and State ex rel. Hill v. Pirtle, an officer independently exercises a sovereign executive, legislative, or judicial function "largely independent of the control of others," while an employee's duties are generally routine, subordinate, advisory, and as directed.

The AG examined Caldwell's ordinance governing the fire marshal. The fire marshal investigates the cause and origin of fires, can summon and swear witnesses and compel evidence, may cause an arrest where the evidence points to arson, conducts inspections and plan reviews, and follows the rules of the Texas Commission on Fire Protection. Those duties carry some executive and even quasi-judicial flavor. But the AG found they are hemmed in by control from others: the fire marshal reports to the city administrator, is appointed by the mayor with the council's consent, can be removed by the council for failing to perform, and has specific actions (such as compliance with state fire-protection rules and orders to fix dangerous fire conditions) placed under the supervision of, or subject to appeal to, the city council, mayor, and city administrator. The AG noted that even though the ordinance calls the role "the office of fire marshal," the governing test looks at substance, not the label. Given the layers of control, the AG concluded a court would likely find the Caldwell fire marshal does not act largely independent of others and so is not an "office" under article XVI, section 40. That means the Constitution would not bar the sheriff from also serving as fire marshal.

The AG then applied the common-law doctrine of incompatibility, which bars holding two positions that would prevent a person from exercising independent and disinterested judgment in either. Like the constitutional provision, that doctrine applies only when both positions are public offices. Because the fire marshal is likely not an office, the AG concluded a court would likely find the incompatibility doctrine does not bar the sheriff from holding both roles either.

What this means for you

This describes what the 2021 opinion holds for this specific arrangement. It is the AG's reading, it depends heavily on Caldwell's particular ordinance, and local law can change, so confirm current law before relying on it.

Sheriffs and county officials

The opinion concludes a court would likely allow the Burleson County Sheriff to serve simultaneously as the Caldwell fire marshal, because the fire marshal position, as structured by Caldwell's ordinance, is likely public employment rather than a second "office."

Cities and fire departments

The opinion turns on the degree of control a city keeps over its fire marshal: reporting to the city administrator, appointment and removal by mayor and council, and oversight of key actions all pointed away from "office" status. A differently structured fire-marshal role with more independence could come out the other way.

Anyone weighing dual-role service

The opinion is a reminder that both the constitutional dual-office ban and the common-law incompatibility doctrine apply only when both positions are offices, and that whether a role is an "office" depends on substance (independent exercise of sovereign power), not on what a charter or ordinance calls it.

Common questions

Q: Can a Texas sheriff hold a second paying government job?
A: It depends on whether the second job is an "office." Here the AG concluded the Caldwell fire marshal is likely not an office, so a court would likely allow the sheriff to hold both.

Q: Why isn't the fire marshal an "office"?
A: Because, under Caldwell's ordinance, the fire marshal reports to the city administrator, is appointed and removable by the mayor and council, and has key actions subject to supervision and appeal, so the role is not exercised largely independent of others.

Q: The ordinance literally says "office of fire marshal." Doesn't that settle it?
A: No. The AG noted the controlling test looks at the substance of the duties and the degree of independence, not the label a city ordinance uses.

Q: What is the common-law incompatibility doctrine?
A: It bars a person from holding two positions that would keep them from exercising independent, disinterested judgment in either. It applies only when both positions are public offices, which is why it did not bar this arrangement.

Q: Would this answer be the same in another city?
A: Not necessarily. The conclusion rests on Caldwell's specific ordinance. A fire marshal with more independent authority elsewhere could qualify as an office and change the result.

Background and statutory framework

The constitutional bar is article XVI, section 40(a), which prohibits holding more than one civil office of emolument. The sheriff's office and salary come from article V, section 23 and article XVI, section 61. The officer-versus-employee distinction comes from Aldine Indep. Sch. Dist. v. Standley (quoting Dunbar v. Brazoria Cnty., later disapproved on other grounds in Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist.) and State ex rel. Hill v. Pirtle (Tex. Crim. App. 1994). The common-law incompatibility analysis draws on prior AG opinions KP-0054, GA-0169, and KP-0172, and on Thomas v. Abernathy Cnty. Line Indep. Sch. Dist. The fire-marshal position is a municipal creation governed by Caldwell's Code of Ordinances; state statutes such as Government Code sections 417.0075(g) and 417.009(a) and Health and Safety Code section 791.006(b)(4) acknowledge municipal fire marshals without creating the position.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40 (dual office holding); art. V, § 23; art. XVI, § 61 (sheriff)
• Tex. Gov't Code §§ 417.0075(g), 417.009(a); Tex. Health & Safety Code § 791.006(b)(4) (municipal fire marshal acknowledged)

Key cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955); State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994) (officer vs. employee test)
• Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted) (incompatible offices)
• Dunbar v. Brazoria Cnty., 224 S.W.2d 738 (Tex. App.—Galveston 1949, writ ref'd); Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690 (Tex. 1968)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0369
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0369.pdf

Original opinion text

May 3, 2021

The Honorable Susan Deski
Burleson County Attorney
100 West Buck Street, Suite 402
Caldwell, Texas 77836

Opinion No. KP-0369

Re: Whether simultaneous service as county sheriff and municipal fire marshal violates article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility (RQ-0386-KP)

Dear Ms. Deski:

On behalf of the Burleson County Sheriff, you ask whether article XVI, section 40 of the Texas Constitution or the common-law doctrine of incompatibility prohibits the Burleson County Sheriff from assuming and simultaneously holding the position of fire marshal for the City of Caldwell ("Caldwell").¹

Constitutional Prohibition on Dual Office Holding

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). An emolument is "a pecuniary profit, gain, or advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). This dual-officeholding prohibition applies if both positions are civil offices entitled to an emolument. Id.

A sheriff is a constitutional officer who receives a salary. See TEX. CONST. arts. V, § 23 (establishing the office of sheriff), XVI, § 61(a), (c) (requiring the compensation of sheriffs on a salary basis). Accordingly, as this office previously concluded, a sheriff holds an office of emolument under article XVI, section 40. See Tex. Att'y Gen. Op. Nos. GA-0328 (2005) at 1, GA-0393 (2006) at 4 n.5. You tell us the Caldwell fire marshal receives a salary. Request Letter at 2. Thus, the issue for purposes of the constitutional prohibition on dual officeholding is whether the position of municipal fire marshal constitutes an "office."

Under article XVI, section 40, an "officer," as distinguished from a public employee, is an individual upon whom "any sovereign function of the government is 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) (quoting Dunbar v. Brazoria Cnty., 224 S.W.2d 738, 740–41 (Tex. App.—Galveston 1949, writ ref'd), disapproved on other grounds, Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690, 693–94 (Tex. 1968)). As one court explained,

a public 'officer' is authorized by law to independently exercise functions of either an executive, legislative, or judicial character, and the exercise of this power by the officer is subject to revision and correction only according to the standing laws of this state. A public employee, in contrast, is a person in public service whose duties are generally routine, subordinate, advisory, and as directed.

Pirtle, 887 S.W.2d at 931. Thus, we must consider various aspects of a municipal fire marshal's duties to determine their nature and the degree to which they are exercised in an independent manner.

The position of municipal fire marshal is a municipal creation.² See Tex. Att'y Gen. Op. No. H-1056 (1977) at 2 (affirming a general-law city's authority to create a municipal fire marshal); see also CALDWELL, TEX., CODE OF ORDINANCES ch. 1, art. 1.02, § 1.02.001 (2011)³ (establishing Caldwell as a Type A general-law city). As such, we turn to article 5.02 of Caldwell's Code of Ordinances, which governs the fire marshal.⁴ See id. ch. 5, art. 5.02, §§ 5.02.001–.012.

The Caldwell fire marshal's main duty is to investigate the cause, origin, and circumstances of any fire in the city that damages or destroys property. Id. § 5.02.002. In the exercise of that duty, the fire marshal may summon and swear in witnesses and compel the production of evidence on "any matter" requiring inquiry and investigation. Id. § 5.02.004. The fire marshal conducts fire investigations, takes testimony, and, if he or she believes the evidence points to arson or related criminal conduct, "shall cause such person to be lawfully arrested and charged." Id. § 5.02.003. The fire marshal also conducts regular fire inspections, formulates and conducts plan reviews of all nonresidential construction, and complies with the rules and regulations of the Texas Commission on Fire Protection. Id. § 5.02.010(a)–(c).

Although these duties may possess some attributes of an executive, legislative, or judicial nature, they are not without limits. Notably, while article 5.02 of Caldwell's Code of Ordinances specifies that the fire marshal "shall be independent of other city departments," the fire marshal reports to someone—namely, the city administrator. Id. § 5.02.001 (also providing that the mayor appoints the fire marshal with consent of the city council and that the city council may remove the fire marshal for failure to timely perform his or her duties). Further, certain actions of the fire marshal are subject to specific oversight. See, e.g., id. §§ 5.02.010(d) (providing that the fire marshal's compliance with the rules and regulations of the state commission on fire protection shall be "under the supervision of the city council, mayor, and city administrator"); and 5.02.008 (authorizing the fire marshal to order the removal of hazardous heating elements or the remedy of dangerous fire conditions in a building, but subjecting the order to appeal and ultimate revocation by the mayor). Given these provisions, a court would likely conclude that the Caldwell fire marshal does not exercise his or her functions "largely independent of the control of others," and therefore the position does not constitute an "office" under article XVI, section 40 of the Constitution. As such, the Constitution would not bar the Burleson County Sheriff from simultaneously serving as the fire marshal for Caldwell.

Common-Law Doctrine of Incompatibility

In addition to the constitutional analysis, we turn further to the common-law doctrine of incompatibility. The common-law doctrine of incompatibility prohibits certain conflicts that may arise from holding two positions that are public offices. See Tex. Att'y Gen. Op. No. KP-0054 (2015) at 1. Relevant here, conflicting loyalties incompatibility prohibits a person "from simultaneously holding two positions that would prevent the person from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2; see also Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (holding the positions of school trustee and municipal alderman as incompatible). But, like the constitutional provision, the common-law doctrine "applies only when both positions are public offices." Tex. Att'y Gen. Op. No. KP-0172 (2017) at 2. Given that the position of fire marshal of Caldwell is likely not an "office," a court would likely find that the common-law doctrine of incompatibility would not bar the Burleson County Sheriff from simultaneously serving as the fire marshal for Caldwell.

¹ See Letter from Honorable Susan Deski, Burleson Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 13, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0386KP.pdf ("Request Letter").

² State law does not create the position of municipal fire marshal, although several statutes acknowledge the existence of the position. See, e.g., TEX. GOV'T CODE §§ 417.0075(g) (recognizing the authority of a "municipal fire marshal" in the investigation of a firefighter fatality), 417.009(a) (authorizing the state fire marshal to delegate certain investigatory duties to "the fire marshal of the city"); TEX. HEALTH & SAFETY CODE § 791.006(b)(4) (providing for the inspection of certain fire escapes by "a municipal fire marshal").

³ Available at https://www.caldwelltx.gov/departments/code-enforcement/.

⁴ Section 5.02.001 of Caldwell's Code of Ordinances provides that "[t]he office of fire marshal is hereby created." CALDWELL, TEX., CODE OF ORDINANCES ch. 5, art. 5.02, § 5.02.001 (2011) (emphasis added). But as previously noted, the Aldine test focuses on substance rather than form.

S U M M A R Y

A court would likely conclude that neither the dual-officeholding prohibition of article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility would prohibit the Burleson County Sheriff from simultaneously serving as the fire marshal for the City of Caldwell.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee