Can a Texas constable who also works as a deputy sheriff be paid overtime, including from a federal Justice Assistance Grant?

Plain-English summary

The Dimmit County Auditor, Carlos Pereda, had a payroll question about an unusual but legal arrangement. An elected constable in the county had also been working as a deputy in the sheriff's office for two years. He drew his regular constable pay every pay period, and as a deputy he worked 80 hours per pay period and had sometimes been paid overtime through the Governor's Justice Assistance Grant. The auditor asked two things: could this constable receive a deputy's sick leave and vacation benefits, and could he be paid overtime from the grant.

On the benefits question, the AG pointed to an earlier opinion, GA-0470, which already held that a constable may serve as a sheriff's deputy and be compensated for that work on top of the constable salary. Neither the dual-office-holding ban in article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility blocks one person from holding the elected constable office and a deputy job at the same time. Local Government Code section 152.011 lets the commissioners court set compensation and allowances for county and precinct employees paid from county funds, and the AG read that as impliedly authorizing the court to pay benefits like sick leave, vacation, and overtime. So if the county budget appropriates those benefits for sheriff's deputies, the county may give them to a constable who is employed as a deputy.

On the grant question, the AG declined to give a direct answer and instead identified who must decide. The federal Edward Byrne Memorial Justice Assistance Grant, known as JAG, funds law enforcement programs but comes with limits: under 34 U.S.C.A. section 10152(a)(1) the money is for additional personnel and support, it cannot supplant state or local funds, and under 28 C.F.R. section 33.23(b) programs whose primary purpose is paying usual salaries are barred. The Criminal Justice Division (CJD) of the Governor's Office administers JAG in Texas under rules in Title 1, chapter 3 of the Texas Administrative Code. Rule 3.75(b) bars using grant funds to compensate an elected or appointed official for service in that capacity, but it does not speak to paying that same person for separate work as a deputy. Whether paying the constable's deputy overtime would improperly supplant a county obligation depends on the specific facts, and the AG noted (citing KP-0239) that fact questions of that kind cannot be resolved in an opinion. Because the CJD has the authority to examine the facts and make the final funding decision, the AG concluded the CJD must determine whether the constable may be paid JAG overtime for deputy service.

What this means for you

This describes what the opinion holds. It is the AG's 2021 reading, and statutes and grant rules can change, so confirm current law before relying on it.

County auditors and commissioners courts

The opinion treats the deputy benefits question as settled by the budget: if the commissioners court's annual budget appropriates sick leave, vacation, and overtime for sheriff's deputies under section 152.011, those benefits may go to a constable who is also employed as a deputy. On the grant overtime, the opinion does not give county officials a yes or no; it places that determination with the CJD.

Constables serving as deputy sheriffs

The opinion confirms that holding the elected constable office and working as a deputy sheriff at the same time is permissible, and that the deputy role can carry the same county-funded benefits as any other deputy. Whether grant money can pay the overtime for that deputy work is left to the CJD.

Sheriff's offices and grant administrators

The opinion reads the CJD as the body that must apply the JAG rules to these facts, including the bar on paying elected officials for their official capacity and the anti-supplanting rule. It does not pre-clear or forbid the payment; it routes the question to the grant administrator.

Common questions

Q: Can a Texas constable also work as a sheriff's deputy?
A: Yes. The AG, following GA-0470, said neither the dual-office-holding ban nor the incompatibility doctrine prevents an elected constable from serving as a deputy sheriff at the same time.

Q: Can that constable get a deputy's sick leave, vacation, and overtime?
A: Yes, if the county budget provides those benefits for sheriff's deputies. Section 152.011 lets the commissioners court set compensation and allowances, which the AG read to include leave and overtime.

Q: Can the constable be paid overtime from the Justice Assistance Grant?
A: The AG did not decide that. It concluded the Criminal Justice Division of the Governor's Office, which administers JAG, must determine whether the grant can pay overtime for the constable's separate deputy service.

Q: Why can't the grant pay the constable directly for being constable?
A: Rule 3.75(b) of the CJD's grant rules bars using grant funds to compensate an elected or appointed official for service in that capacity. The deputy role is a separate employee capacity, which is what made the question harder.

Q: What does the anti-supplanting rule mean here?
A: JAG money must add to law enforcement spending, not replace funds the county would have spent anyway. Whether paying the overtime would supplant a county obligation depends on the facts, which is part of why the AG left the call to the CJD.

Background and statutory framework

The county-benefits half of the opinion rests on Local Government Code section 152.011, which directs the commissioners court to set the compensation, expenses, and allowances for county and precinct officers and employees paid wholly from county funds. The AG read that authority, as it had in GA-0470, GA-0661, and GA-0303, to include benefits such as sick leave, vacation, and overtime. The lawfulness of the dual role traces to GA-0470 and GA-0402, which found no bar in article XVI, section 40 of the Texas Constitution or the incompatibility doctrine.

The grant half turns on the JAG program's federal and state rules. Federal law (34 U.S.C.A. section 10152(a)(1)) sets the permissible uses of JAG funds, and 28 C.F.R. section 33.23(b) bars programs that mainly pay usual salaries. The Texas CJD's rules in Title 1, chapter 3 of the Administrative Code govern grant awards, including rule 3.75 on personnel costs (with subsection (b) barring pay to elected or appointed officials) and rule 3.7(a) vesting the final funding decision in the CJD's executive director. The AG cited KP-0239 for the proposition that a fact-dependent supplanting question cannot be resolved in an opinion.

Citations and references

Statutes and regulations:

• Tex. Loc. Gov't Code § 152.011 (commissioners court sets county employee compensation and allowances)
• Tex. Const. art. XVI, § 40 (dual-office holding)
• 34 U.S.C.A. § 10152(a)(1) (permissible JAG uses); 28 C.F.R. § 33.23(b) (no programs primarily paying usual salaries)
• 1 Tex. Admin. Code §§ 3.1–.2603 (CJD grant rules), § 3.75(a)–(b) (personnel costs; no pay for elected or appointed officials), § 3.7(a) (final funding decision)

Prior AG opinions referenced: GA-0470 (2006), GA-0402 (2006), GA-0661 (2008), GA-0303 (2005), KP-0239 (2019).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0374
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0374.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

June 21, 2021

Mr. Carlos A. Pereda
Dimmit County Auditor
301 North 5th Street
Carrizo Springs, Texas 78834

Opinion No. KP-0374

Re: Whether a constable working as a deputy sheriff may be paid for work under the Justice Assistance Grant (RQ-0393-KP)

Dear Mr. Pereda:

You ask whether a constable working as a deputy sheriff may be paid for work under the Justice Assistance Grant.¹

Background

You tell us the Dimmit County sheriff's office has employed an elected constable as a sheriff's deputy for the last two years. Request Letter at 1. You state that he receives his regular compensation as a constable every pay period. Id. As deputy, you tell us, he works 80 hours per pay period and has occasionally received overtime payment through the Governor's Justice Assistance Grant. Id. You also wish to know whether a constable employed as a sheriff's deputy may receive (1) the sick leave and vacation benefits of a deputy, and (2) overtime payment under the Justice Assistance Grant. Id.

Receipt of Sick Leave and Vacation Benefits

Pertinent to your first question, this office previously determined, in Attorney General Opinion GA-0470, that a constable may be employed as a deputy in the sheriff's office and receive compensation as such, in addition to the salary received for service as constable. Tex. Att'y Gen. Op. No. GA-0470 (2006) at 4. The opinion explained that neither the dual-office holding prohibition in article XVI, section 40 of the Texas Constitution, nor the common-law doctrine of incompatibility precludes an elected constable from simultaneously serving as a deputy sheriff. Id. (citing Tex. Att'y Gen. Op. No. GA-0402 (2006) at 2). Relying on section 152.011 of the Local Government Code, the opinion concluded that "[s]o long as the county's annual budget appropriates compensation, including overtime compensation, for the sheriff's deputies, a deputy sheriff, including a deputy sheriff who is also a constable, may be compensated for serving as a deputy sheriff." Id.

Section 152.011 of the Local Government Code requires the county commissioners court to "set the amount of the compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds." TEX. LOC. GOV'T CODE § 152.011. That section impliedly authorizes the commissioners court to pay employee benefits such as sick leave, vacation leave, and overtime from county funds. See id.; see also Tex. Att'y Gen. Op. Nos. GA-0661 (2008) at 2 ("Under section 152.011, the court may confer upon county officers and employees such benefits as longevity pay, vacation leave, sick leave, and paid holidays."), GA-0470 (2006) at 4 (determining that county budget may appropriate overtime pay to sheriff deputies), GA-0303 (2005) at 2 (noting a commissioners court's general authority concerning compensation and allowances for county and precinct officers and employees who are paid wholly from county funds). Provided a county's annual budget appropriates sick leave, vacation, and overtime compensation for sheriff's deputies, the county may provide such compensation to a constable employed as a sheriff's deputy.

Use of the Justice Assistance Grant

Your remaining question is whether a constable may receive overtime payment from the Governor's Justice Assistance Grant for service as a deputy. Request Letter at 1. Formally known as the federal Edward Byrne Memorial Justice Assistance Grant Program ("JAG"), the grant "provides federal justice funding to state and local jurisdictions to support a range of program areas including law enforcement."² In GA-0470, considering the administrative rules in place at the time, this office concluded that JAG funds may not compensate elected or appointed officials such as the sheriff or constable for their service in that capacity, but the opinion did not address whether those officials may receive overtime payment for separate service in an employee capacity. See Tex. Att'y Gen. Op. No. GA-0470 (2006) at 3–4.

A "[s]tate or unit of local government" may use JAG funds "to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for" law enforcement programs. 34 U.S.C.A. § 10152(a)(1) (emphasis added). A state or unit of local government may use JAG grant funds for reasonable overtime compensation if authorized.³ However, the grant funds "may not be used to supplant state or local funds but must be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities." Id. at 19; see also 28 C.F.R. § 33.23(b) ("Programs which have as their primary purpose the payment of usual salaries paid to employees generally, or to specific classes of employees within a jurisdiction, are prohibited.").

The Criminal Justice Division ("CJD") of the Office of the Texas Governor administers the JAG Program, which "supports state and local agencies in the prevention and reduction of violent crime."⁴ The CJD promulgated rules regarding CJD grants, including the JAG program, in Title 1, chapter 3 of the Texas Administrative Code. See 1 TEX. ADMIN. CODE §§ 3.1–.2603. An agency or organization receiving a grant award "must comply with all applicable state and federal statutes, rules, regulations, and guidelines," and when both federal and state requirements are applicable, "the more restrictive requirement applies." Id. § 3.1. To receive a grant award, an agency or organization must submit an application to the CJD in accordance with CJD requirements. Id. § 3.5; see also id. § 3.3(s). The CJD may request the applicant to submit additional information necessary to complete the grant review. Id. § 3.7(d). The executive director makes the final funding decision. Id. § 3.7(a).

Section 3.75 addresses use of grant funds for personnel:

(a) CJD shall determine the reasonableness of requested salaries and reserves the right to limit the CJD-financed portion of any salary.

(b) CJD shall not pay any portion of the salary of, or any other compensation for, an elected or appointed government official.

(c) Compensation for grant-funded employees must be comparable to that of non grant-funded employees performing similar work duties.

(d) . . . .

Id. § 3.75. Subsection (b) plainly prohibits using JAG grant funds to compensate a constable for services as a constable but does not address using JAG funds for a constable's services rendered in a separate employee capacity such as deputy sheriff. Id. § 3.75(b). The "CJD shall determine the reasonableness of requested salaries and reserves the right to limit the CJD-financed portion of any salary." Id. § 3.75(a). Moreover, whether use of JAG funds to pay overtime would supplant an existing county obligation would depend on the particular facts, which cannot be determined in an Attorney General opinion. Tex. Att'y Gen. Op. No. KP-0239 (2019) at 3. As the entity with authority to inquire into the particular facts and make the final funding decision, the CJD must ultimately determine whether a constable may receive compensation for overtime in the separate capacity of a deputy sheriff.⁵

¹ See Letter from Carlos A. Pereda, Dimmit Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 20, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0393KP.pdf ("Request Letter").

² Bureau of Justice Assistance, U.S. Dep't of Justice, Edward Byrne Memorial Justice Assistance Grant (JAG) Program, Overview, https://bja.ojp.gov/program/jag/overview ("JAG Program").

³ See JAG PROGRAM, FREQUENTLY ASKED QUESTIONS (FAQ) 23 (July 2020), https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/JAGFAQ.pdf.

⁴ See OFFICE OF THE TEXAS GOVERNOR, GRANTS, https://gov.texas.gov/organization/financial-services/grants.

⁵ See OFFICE OF THE TEXAS GOVERNOR, eGRANTS, https://egrants.gov.texas.gov/contactpage.aspx (providing contact information for the CJD).

S U M M A R Y

Provided a county's annual budget appropriates sick leave, vacation, and overtime compensation for the sheriff's deputies, the county may provide such compensation to a constable employed as a sheriff's deputy.

As administrator of Justice Assistance Grants, the Criminal Justice Division of the Office of the Governor must determine whether a constable may receive overtime payment for service as a deputy sheriff from the Justice Assistance Grant.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee