Can an emergency services district commissioner also serve as a volunteer firefighter for the same district?

Plain-English summary

The Hardin County Attorney asked whether a single person can serve at the same time as a volunteer firefighter for an emergency services district (ESD) and as a commissioner on that ESD's board. He noted that a Nueces County attorney opinion had concluded such dual service was barred by the common-law incompatibility doctrine back when these were rural fire prevention districts, and he asked whether the conversion of those districts into ESDs changed the answer. The AG looked at two separate legal rules: the constitutional ban on holding two public offices and the common-law doctrine of incompatibility.

On the constitutional side, article XVI, section 40(a) says no person may hold more than one civil office of emolument at the same time. That ban only applies if both positions are offices. The AG confirmed that an ESD commissioner holds an office of emolument (the commissioner is paid under Health and Safety Code section 775.038(a-1), which ties the fee to Water Code section 49.060). But the office has consistently held that a volunteer firefighter does not hold an office at all. Because one of the two positions is not an office, the constitutional dual-officeholding ban does not prohibit the combination.

The common-law doctrine of incompatibility is a different matter. It prohibits dual public service in cases of self-appointment, self-employment, and conflicting loyalties. The relevant branch here is self-employment, which keeps an officer from holding a position the officer has authority to supervise. That branch is not limited to paid employees; it can reach a volunteer position too, because the key question is supervision, not pay. An ESD is governed by its board of commissioners, which appoints and employs the district's officers and agents and administers the district. Even when a fire chief directly supervises volunteer firefighters, the chief and the firefighters are ultimately under the board's control. So a volunteer firefighter for an ESD that provides its own service is immediately or ultimately subordinate to the board. The AG concluded a court would likely find the incompatibility doctrine bars one person from being both a volunteer firefighter for an ESD and a commissioner on that ESD's board, and that the conversion of rural fire prevention districts into ESDs does not change that conclusion.

What this means for you

If you serve on, or want to serve on, an ESD board

Based on this opinion, the AG reads the common-law incompatibility doctrine to bar the same person from sitting on the ESD board and volunteering as a firefighter for that ESD, because the board ultimately supervises the firefighters. The opinion frames this as what a court "would likely conclude," and it assumes an ESD that provides its own emergency service rather than contracting the service out.

If you are a volunteer firefighter considering a board seat

The opinion treats the constitutional dual-office ban as no obstacle, since a volunteer firefighter is not an officer, but it treats the incompatibility doctrine as the barrier. The practical effect the opinion describes is that you generally cannot hold both roles at once for the same district.

If you advise an ESD or county on these conflicts

The decisive point is supervision: self-employment incompatibility applies when the officer is in the direct or ultimate chain of supervision over the position. The opinion notes that having a fire chief in between does not insulate the firefighter from the board's ultimate control, and that the rural-fire-prevention-to-ESD conversion under section 775.026(a) does not alter the analysis.

Common questions

Q: Can the same person be an ESD commissioner and a volunteer firefighter for that ESD?
A: The AG concluded a court would likely find the common-law incompatibility doctrine bars it, because the board of commissioners ultimately supervises the district's firefighters.

Q: Doesn't the constitution already ban holding two offices?
A: It bans holding more than one civil office of emolument, but that only applies where both positions are offices. A volunteer firefighter is not an officer, so the constitutional ban does not apply here. The bar comes from the common-law doctrine instead.

Q: Does the incompatibility doctrine apply to unpaid volunteers?
A: Yes. The self-employment branch of the doctrine turns on supervision, not pay, so it can reach a volunteer position the officer supervises.

Q: Does it matter that there is a fire chief between the board and the firefighters?
A: No. The opinion explains that a fire chief does not insulate a volunteer firefighter from the board's ultimate control, because the board administers the district and appoints its officers and employees.

Background and statutory framework

Two doctrines govern whether one person may hold two public positions. Article XVI, section 40(a) of the Texas Constitution bars holding more than one civil office of emolument. Whether a position is an "office" turns on whether a sovereign function of government is conferred on the individual to exercise largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, quoting Dunbar v. Brazoria Cnty.), and an emolument is a pecuniary profit, gain, or advantage (State ex rel. Hill v. Pirtle). An ESD commissioner is a paid office; a volunteer firefighter is not an office, so the constitutional ban does not reach the combination.

The common-law doctrine of incompatibility separately prohibits dual public service in cases of self-appointment, self-employment, and conflicting loyalties (Ehlinger v. Clark). The self-employment branch keeps an officer from holding a position the officer supervises, and it can apply to volunteer positions because the fundamental consideration is supervision. An ESD is governed by its board, which appoints and employs the district's officers and agents and administers the district (Health and Safety Code sections 775.031(a)(3), 775.036(a)(5)). Because a volunteer firefighter for a service-providing ESD is ultimately subordinate to the board, the AG concluded a court would likely find the incompatibility doctrine bars one person from holding both roles.

Citations and references

Statutes and constitution:

• Tex. Const. art. XVI, § 40 — prohibition on holding more than one civil office of emolument
• Tex. Health & Safety Code § 775.036 — ESD board administers the district and appoints its employees
• Tex. Health & Safety Code § 775.038 — ESD commissioner compensation

Key cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955) — test for whether a position is a public office
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994) — defines "emolument"
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928) — common-law doctrine of incompatibility

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0434
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0434.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 24, 2023

The Honorable Matthew E. Minick
Hardin County Attorney
Post Office Box 516
Kountze, Texas 77625

Opinion No. KP-0434

Re: Whether a commissioner of an emergency services district may also serve as a volunteer fire fighter for the emergency services district (RQ-0477-KP)

Dear Mr. Minick:

You ask whether a person may simultaneously serve as a volunteer fire fighter for an emergency services district (ESD) and a commissioner on the ESD's board of commissioners.¹ You explain that another county's attorney previously concluded this type of dual service is prohibited by the common-law doctrine of incompatibility. See Request Letter at 1 (citing County Attorney Opinion Number CL-97-014 from Nueces County); Attachment at 2 (concluding the incompatibility doctrine prohibits a commissioner of a rural fire prevention district from simultaneously serving as a volunteer fire fighter in that district). You question whether the fact that rural fire prevention districts have converted to ESDs impacts that conclusion. See Request Letter at 1; TEX. HEALTH & SAFETY CODE § 775.026(a) (providing that "[e]ach rural fire prevention district created under former Chapter 794 is converted to an emergency services district operating under this chapter [775]"). To address your question, we consider both the constitutional prohibition against dual officeholding and the common-law doctrine of incompatibility.

Constitutional Prohibition on Dual Officeholding

Article XVI, subsection 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). This dual-officeholding prohibition applies if both positions are civil offices of emolument.² See id. The determinative factor distinguishing an "officer" from a non-officer is "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) (quoting Dunbar v. Brazoria Cnty., 224 S.W.2d 738, 740 (Tex. Civ. App.—Galveston 1949, writ ref'd)). 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).

In Attorney General Opinion GA-1036, this office determined that an ESD commissioner holds an office of emolument. See Tex. Att'y Gen. Op. No. GA-1036 (2014) at 1. While the statute related to commissioner compensation cited in that opinion was amended in 2017, a commissioner still receives compensation for his or her services. See TEX. HEALTH & SAFETY CODE § 775.038(a-1) (providing a commissioner "is entitled to receive compensation in the same manner and amount as are provided by Section 49.060, Water Code"); see also TEX. WATER CODE § 49.060(a) (providing that "[a] director is entitled to receive fees of office of not more than $150 a day for each day the director actually spends performing the duties of a director"). Thus, the conclusion in GA-1036 is not impacted by the statutory amendment.³

This office has consistently determined that a volunteer fire fighter does not hold an office. See Tex. Att'y Gen. Op. Nos. JC-0385 (2001) at 1, H-665 (1975) at 2. Because the position of volunteer fire fighter is not an office for purposes of article XVI, section 40 of the Texas Constitution, its prohibition against dual officeholding does not preclude an ESD commissioner from simultaneously serving as volunteer fire fighter for the ESD.

Common-Law Doctrine of Incompatibility

Next, we consider the common-law doctrine of incompatibility which prohibits dual public service in cases of self-appointment, self-employment, and conflicting loyalties. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Relevant here, self-employment incompatibility 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. "Self-employment" is not limited to an "employment" as one might commonly understand the term, but instead can include a position performed in a voluntary capacity. See Tex. Att'y Gen. Op. No. GA-0536 (2007) at 4. Rather than the nature of the position as employee or volunteer, "[t]he fundamental consideration under the self-employment aspect [of the incompatibility doctrine] is the supervision of the subordinate" by the officer. Tex. Att'y Gen. Op. No. GA-0826 (2010) at 2 (emphasis added) (quoting Tex. Att'y Gen. Op. No. GA-0738 (2009) at 2).

You do not provide any information about the volunteer fire fighter's supervision or chain of command. See generally Request Letter. For instance, a fire chief directly supervises volunteer fire fighters in some ESDs. See, e.g., LUMBERTON FIRE & EMS HARDIN COUNTY E.S.D. #2, https://lumbertonfireems.com/about/ (explaining the fire chief reports to the board of commissioners and all other fire personnel report to the chief); see also TEX. HEALTH & SAFETY CODE § 775.083(a)(5) (acknowledging that the positions of general manager, executive director, or fire chief may exist). But an ESD is ultimately governed by a board of commissioners. See TEX. HEALTH & SAFETY CODE §§ 775.034, .0341, .0345, .035 (all providing for a board of commissioners to serve as an ESD's governing body). State law provides that the ESD board of commissioners may "appoint and employ necessary officers, agents, and employees" and shall "administer the district." Id. §§ 775.031(a)(3), .036(a)(5). Thus, having a fire chief does not insulate the volunteer fire fighter from ultimate control of the ESD board. See Tex. Att'y Gen. Op. No. KP-0418 (2022) at 2 (explaining that self-employment incompatibility applies when the officer is in the direct chain of supervision over the position). Assuming the ESD undertakes the role of service provider, we conclude a volunteer fire fighter for an ESD is immediately or ultimately subordinate to the ESD board of commissioners. See supra note 1; cf. also Tex. Att'y Gen. Op. No. GA-0360 (2005) at 5 (concluding an ESD accountant is employed by the district and presumably serves at the board's will). Consequently, a court would likely conclude that the common-law doctrine of incompatibility bars a person from simultaneously serving as a volunteer fire fighter for an ESD and a commissioner on the ESD's board of commissioners. This conclusion is not affected by the conversion of rural fire prevention districts to ESDs.

S U M M A R Y

A court would likely conclude that the common-law doctrine of incompatibility bars a person from simultaneously serving as a volunteer fire fighter for an emergency services district and a commissioner on the ESD's board of commissioners.

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

AUSTIN KINGHORN
Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee

¹ See Letter and Attachment from Matthew E. Minick, Hardin Cnty. Att'y, to Off. of the Att'y Gen., Op. Comm. at 1 (Aug. 29, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0477KP.pdf ("Request Letter" and "Attachment"). We understand your question to involve an ESD that assumes the role of service provider and is "directly responsible for hiring the men and women (or accepting volunteers)" to provide emergency services to the residents of the district. TEX. ASSOC. OF FIRE & EMERGENCY DIST., ESD HANDBOOK (2017) at 43–44 (discussing the various methods by which ESDs provide emergency services and explaining that some contract for services with other entities, some undertake the role of service provider themselves, and some have combination departments).

² See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.—Beaumont 1966, writ ref'd n r.e.) (recognizing there is no distinction between "civil office" and "public office").

³ See also TEX. HEALTH & SAFETY CODE § 775.0366(c) (evidencing that an ESD commissioner holds a civil office of emolument by providing that a commissioner acting under a contract under the section "does not, because of that action, hold more than one civil office of emolument or more than one office of honor, trust, or profit" (emphasis added)).