Can a Texas city council member also serve as a volunteer reserve police officer for the same city?

Plain-English summary

A resident of Freeport was serving on the city's volunteer police reserve force when voters elected him to the city council. That left an obvious question: can the same person sit on the council and serve as a reserve officer at the same time? On behalf of the city, the Brazoria County Criminal District Attorney asked the AG.

The answer turns on the common-law doctrine of incompatibility, a judge-made rule (also developed through many AG opinions) that bars one person from holding two public positions in certain conflict situations. The doctrine has three prongs: self-appointment, self-employment, and conflicting loyalties. The relevant one here is self-employment, which prevents a public officer from being employed in a position over which the officer has employment authority. The core question under that prong is whether the office supervises the subordinate employment. It is enough that the officer sits somewhere in the direct chain of supervision over the position; the supervision does not have to be direct or sole.

Applying that to Freeport, the AG found the city council does exercise employment authority over the police reserve force. Local Government Code section 341.012 gives the council considerable supervisory authority: it must establish the qualifications and training standards for reserve members and may limit the size of the reserve force. The Freeport city charter follows section 341.012, and the council also supervises the city manager and police chief, who in turn appoint and remove reserve officers. That places the council squarely in the chain of supervision over reserve officers.

The DA had suggested Freeport might be different from the 1985 opinion (JM-0386, which barred an alderman of a general-law city from serving in that city's police reserve) because the home-rule charter gave the council only an "attenuated" role. The AG was not persuaded. Because the council still exercises employment authority over reserve officers through section 341.012 and the charter's chain of supervision, the doctrine of incompatibility bars a Freeport councilmember from simultaneously serving in the police reserve force.

What this means for you

If you serve on a city council

Based on this opinion, if your council sets qualifications and training standards for the police reserve force, can limit its size, or supervises the officials who appoint and remove reserve officers, you cannot also serve as a member of that reserve force. The AG treats that supervisory authority as the kind of "employment authority" that triggers self-employment incompatibility.

If you are a reserve officer thinking about running for council

The AG's analysis means winning a council seat in a city structured like Freeport would conflict with continued service on the reserve force. The opinion arose from exactly that sequence: a sitting reserve officer was elected to the council.

If you advise a city on these questions

The opinion confirms that a home-rule charter giving the council an "attenuated" role does not avoid incompatibility when section 341.012 still vests the council with authority to set reserve qualifications and training standards and to cap the force, and when the council supervises the city manager and police chief in the appointment-and-removal chain. The outcome tracks JM-0386 (1985) despite the home-rule versus general-law difference.

Common questions

Q: Can a Freeport councilmember also be a reserve police officer?
A: No. The AG concluded the common-law doctrine of incompatibility bars a Freeport councilmember from simultaneously serving as a member of the city's police reserve force.

Q: Why does serving on the council create a conflict?
A: Under the self-employment prong of incompatibility, an officer cannot hold a position the officer has employment authority over. The council sets reserve qualifications and training standards, can limit the force's size, and supervises the city manager and police chief who appoint and remove reserve officers.

Q: Does it matter that the city is home-rule rather than general-law?
A: Not here. The DA argued the home-rule charter gave the council only an attenuated role, but the AG found the council still exercises employment authority over reserve officers, so the result matches the earlier general-law opinion (JM-0386).

Q: What does someone holding both positions have to do?
A: The opinion does not prescribe a remedy, but incompatibility means the two cannot be held at once. As a practical matter that requires giving up one of them; consult a municipal attorney about how that plays out under the charter and Local Government Code.

Background and statutory framework

The common-law incompatibility doctrine prohibits dual public service in cases of self-appointment, self-employment, and conflicting loyalties. The self-employment prong precludes an officer from being employed in a position over which the officer has employment authority, and the fundamental consideration is the office's supervision of the subordinate employment. It is sufficient that the officer sits in the direct chain of supervision over the position. The AG drew these principles from a line of its own opinions (KP-0265 (2019); KP-0172 (2017); GA-0826 (2010); GA-0536 (2007), city administrator could not also be assistant police chief because he supervised the police chief who supervised the assistant chief; GA-0077 (2003); JC-0371 (2001)).

Applying that framework, the AG found the Freeport city council exercises supervisory power over the police reserve force under both the Local Government Code and the charter. Section 341.012 requires the council to "establish qualifications and standards of training for members of the reserve force" and authorizes it to limit the force's size (section 341.012(b), (c)), mirroring the predecessor statute analyzed in JM-0386 (1985). The Freeport charter follows section 341.012 (Charter sections 31.15-31.20 (1993)), and the council supervises the city manager and police chief, who appoint and remove reserve officers, placing the council in the direct chain of supervision. Because the council exercises employment authority over reserve officers, the AG concluded incompatibility bars a councilmember from also serving in the reserve force.

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 341.012 — city council authority to set reserve-force qualifications and training and limit its size

Prior Attorney General opinions relied on:

• Tex. Att'y Gen. Op. No. JM-0386 (1985) — incompatibility barred a general-law city alderman from serving in the city's police reserve
• Tex. Att'y Gen. Op. No. KP-0265 (2019) — three prongs of the incompatibility doctrine
• Tex. Att'y Gen. Op. No. GA-0536 (2007) — chain-of-supervision example (city administrator and assistant police chief)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0418
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0418.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 3, 2022

The Honorable Tom Selleck
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A
Angleton, Texas 77515

Opinion No. KP-0418

Re: Whether a city council member may also serve as a member of the city's reserve police force (RQ-0453-KP)

Dear Mr. Selleck:

On behalf of the City of Freeport ("City"), you ask whether a city council member may also serve as a member of the City's reserve police force.¹ You acknowledge a previous opinion of this office addressed this issue and concluded, "the common law doctrine of incompatibility prohibited an alderman on the city council of a general law city from serving as a member of the city's police reserve." Request Letter at 3 (citing Tex. Att'y Gen. Op. No. JM-0386 (1985) at 3). You suggest the prohibition may not apply here because you believe the City of Freeport Home Rule Charter² ("Charter") gives the city council an attenuated role over the reserve police force. Id. at 4 (asking if "the City Council's supervision and other authority over the City Manager and Police Chief [is] enough to confirm that the holding of a city councilmember position and being a police reserve force member meets the common-law doctrine of incompatibility").

The incompatibility doctrine prohibits an officer from holding an employment position over which the officer exercises employment authority.

The common-law incompatibility doctrine prohibits dual public service in cases of self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. KP-0265 (2019) at 2. One prong of the doctrine relevant here is self-employment, which precludes an officer from being employed in a position over which the officer has employment authority. See Tex. Att'y Gen. Op. No. KP-0172 (2017) at 2. The fundamental consideration under the self-employment aspect of the incompatibility doctrine is the supervision of the subordinate employment by the office. Tex. Att'y Gen. Op. No. GA-0826 (2010) at 2. It is sufficient that the officer is in the direct chain of supervision over the position. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0536 (2007) at 4 (concluding an individual could not serve in the office of city administrator and also as assistant police chief because the city administrator supervised the police chief, who in turn supervised the assistant police chief); GA-0077 (2003) at 2–3 (concluding the director of a water district could not simultaneously serve as a part-time employee of the district where the director had supervisory authority over the general manager, who in turn supervised the part-time employee position); JC-0371 (2001) at 2 (stating that the key element of the rational supporting self-employment incompatibility is the subordination of one position to the other).

The City of Freeport city council exercises employment authority over the City's police reserve force.

The City of Freeport city council exercises supervisory power over the City's police reserve force under both the Local Government Code and the Charter. Like its predecessor, Local Government Code section 341.012 gives the city council considerable supervisory authority over members of the police reserve force. See Tex. Att'y Gen. Op. No. JM-0386 (1985) at 2 (discussing the predecessor statute to section 341.012). For instance, section 341.012 requires the city council to "establish qualifications and standards of training for members of the reserve force" and authorizes the city council to limit the size of the reserve force. TEX. LOC. GOV'T CODE § 341.012(b), (c). You explain "[t]he City Charter follows Section 341.012 of the Texas Local Government Code relating to the use of a Police Reserve Force." Request Letter at 2 (citing FREEPORT, TEX., CITY CHARTER §§ 31.15–31.20 (1993)). In addition, you refer to "the City Council's supervision . . . over the City Manager and Police Chief" under the Charter, which puts the city council in the direct chain of supervision over reserve officers. Id. at 3–4 (explaining the police chief's authority to appoint and remove reserve officers and the city manager's authority to appoint and remove the police chief).

Because the City of Freeport city council exercises employment authority over reserve officers, the common-law doctrine of incompatibility bars a council member from also serving as a member of the City's police reserve.

S U M M A R Y

The common-law doctrine of incompatibility bars a councilmember of the City of Freeport from simultaneously serving as a member of the City's police reserve force.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

CHARLOTTE M. HARPER
Acting Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee

¹ See Letter from Honorable Tom Selleck, Brazoria Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 6, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0453KP.pdf ("Request Letter") (explaining that the individual was serving as a member of the City's reserve police force when he was elected to the city council).

² See https://library.municode.com/tx/freeport/codes/code_of_ordinances?nodeId=HOME%20RULE%20CHARTER (last visited June 15, 2022).