Can a volunteer fire chief or firefighter also serve on the city council in a Texas general-law city?

Plain-English summary

The 112th Judicial District Attorney asked whether the fire chief and the lieutenant of the Iraan Volunteer Fire and Rescue Department could keep serving on the Iraan City Council. The City of Iraan is a small Type A general-law city in Pecos County, with a five-member council and a mayor. In November 2020 the two volunteer-fire-department officers were elected to the council, and the council wanted to know whether they could lawfully hold both positions, noting it was aware of Local Government Code section 21.003 but had not adopted any resolution under it.

The AG explained that, although the question looks at first like a dual-officeholding problem under the Texas Constitution and the common law, a prior opinion (JC-0564) settled that section 21.003 is the controlling law for this specific situation. The constitutional bar in article XVI, section 40 does not apply because a volunteer firefighter does not hold an "office," and section 21.003 preempts the common-law incompatibility doctrine as to volunteer fire departments. So the answer turns on the statute.

Section 21.003 says a member of a municipal governing body may serve as a volunteer for an organization that protects the health, safety, or welfare of the municipality, even one the city funds in whole or part, "if the governing body adopts a resolution" allowing that service. The AG read the word "if" as a condition: the dual service is permitted only when the council has actually adopted the resolution. Because Iraan's council had not done so, the AG concluded a court would likely find that section 21.003 prohibits the two officers from simultaneously serving on the council until the council adopts the resolution. The AG did not reach the requestor's second question (whether such members could vote on council items affecting the fire department), because it was contingent on the opposite answer.

What this means for you

If you sit on a general-law city council

Based on this opinion, if you or a fellow member volunteers with a city-supported organization like a volunteer fire department, the council should adopt a resolution under section 21.003 before that person serves in both roles. Without the resolution, the AG's view is that the dual service is prohibited. Adopting the resolution is a discrete, affirmative step; awareness of the statute is not enough.

If you are a volunteer firefighter elected to local office

The AG concluded you cannot hold both your volunteer-department position and a council seat unless your council has passed the section 21.003 resolution. If it has not, the path forward is to get the council to adopt one, not to assume the statute permits the dual service on its own.

If you advise a city on officeholding questions

The decisive authority is section 21.003 and Opinion JC-0564, which together make the statute, not the common-law incompatibility doctrine or the constitutional dual-office bar, the controlling framework for volunteer-fire-department service. The statutory "if" makes the resolution a precondition. The opinion expressly leaves open the separate question of whether a member who does serve under such a resolution may vote on matters affecting the department.

Common questions

Q: Can a volunteer fire chief serve on the city council in Texas?
A: Only if the city council has adopted a resolution under Local Government Code section 21.003 allowing council members to perform that kind of volunteer service. Without the resolution, the AG concluded the dual service is prohibited.

Q: Doesn't the constitution's dual-office rule decide this?
A: No. The AG noted that a volunteer firefighter does not hold an "office" under article XVI, section 40, so the constitutional bar does not apply. Section 21.003 controls.

Q: What does the council have to do to allow it?
A: Affirmatively adopt the resolution described in section 21.003. The opinion stresses that the statute permits the dual service only "if" the governing body adopts that resolution.

Q: Can such a council member vote on fire-department matters?
A: The AG did not decide that. The question was contingent on the dual service being permitted, so the opinion did not reach it.

Background and statutory framework

A Type A general-law city possesses only the powers the State expressly confers, plus implied powers indispensable to carrying out those granted powers (Builder Recovery Servs., LLC v. Town of Westlake, quoting Town of Lakewood Vill. v. Bizios). The City of Iraan is such a city.

Dual service questions can implicate the constitutional prohibition in article XVI, section 40 and the common-law incompatibility doctrine. But for a member of a volunteer fire department who also serves on a city council, Local Government Code section 21.003 supplies the controlling rule. Chapter 21 addresses general provisions affecting a municipal governing body (sections 21.001 through 21.105), and section 21.003 addresses volunteer service by members of that body. A prior opinion, JC-0564, construed the predecessor statute (originally enacted as section 21.002 and renumbered to 21.003 in 2003) to preempt the common law and occupy the field for dual service on city councils and volunteer fire departments, relying on the rule that when a power is granted and the method of its exercise prescribed, the prescribed method excludes all others (Foster v. City of Waco).

Section 21.003 provides that a member of a municipal governing body "may serve as a volunteer for an organization that protects the health, safety, or welfare of the municipality regardless of whether the organization is funded or supported in whole or part by the municipality if the governing body adopts a resolution allowing members of the governing body to perform service of that nature." The AG read "if" as introducing a condition (Dao v. Mission Bend Homeowners Ass'n; Bagnall v. Bagnall), so the dual service is allowed only when the resolution has been adopted. Because Iraan had not adopted one, the AG concluded the simultaneous service is prohibited until it does.

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 21.003 — council member volunteering for a city-supported organization requires a resolution
• Tex. Const. art. XVI, § 40 — prohibition on holding more than one civil office of emolument

Key cases:

• Builder Recovery Servs., LLC v. Town of Westlake, 650 S.W.3d 499 (Tex. 2022) — general-law cities have only expressly conferred and indispensable implied powers
• Foster v. City of Waco, 255 S.W. 1104 (Tex. 1923) — a prescribed method of exercising a granted power excludes all others
• Bagnall v. Bagnall, 225 S.W.2d 401 (Tex. 1949) — construction of conditional statutory language

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0442
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0442.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 11, 2023

The Honorable Laurie K. English
112th Judicial District Attorney
Post Office Box 1187
Ozona, Texas 76943

Opinion No. KP-0442

Re: May the Fire Chief or Lieutenant of the Iraan Volunteer Fire and Rescue Department simultaneously serve on the Iraan City Council (RQ-0486-KP)

Dear Ms. English:

You ask whether the fire chief or lieutenant of the Iraan Volunteer Fire and Rescue Department ("VFD") may simultaneously serve on the Iraan City Council.¹ You tell us that the City of Iraan ("City") is a Type A general-law city with a population of about 1,240 located in Pecos County, Texas. See Request Letter at 1. You tell us that its city council ("City Council") comprises five city council members and a mayor. Id. You explain that in November of 2020, two individuals who actively serve as the fire chief and the lieutenant of the VFD were elected to the City Council and now the City Council seeks guidance on the question whether these two individuals may simultaneously serve in the dual positions. See id.

In relation to your request, you also explain that the City Council is aware of Local Government Code section 21.003, "which expressly permits such dual service," but has not adopted any resolution thereunder. Id. at 1–2. You provide additional background facts with respect to the operational relationship between the City and the VFD. See id. at 2 (providing such facts "to illustrate the close relationship between" the VFD and the City). These background facts reveal the several instances of financial support the City and Pecos County provide to the VFD. See id.

As the City is a Type A general-law city, we begin by recognizing that general-law cities "possess only 'those powers and privileges that the State expressly confers upon them'" and those implied powers that are indispensable to carrying out expressly granted powers. Builder Recovery Servs., LLC v. Town of Westlake, 650 S.W.3d 499, 503 (Tex. 2022) (quoting Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016)).

At first glance, your question appears to implicate several laws on dual office holding derived from the Texas Constitution and the common-law. See TEX. CONST. art. XVI, § 40; Tex. Att'y Gen. Op. No. KP-0119 (2016) at 2 (discussing common-law incompatibility). However, a previous opinion from this office, Opinion JC-0564, considered a question similar to yours involving the dual service of a member of a volunteer fire department and a city council member in conjunction with Local Government Code section 21.003's predecessor.² Tex. Att'y Gen. Op. No. JC-0564 (2002) at 1, 5. Chapter 21 addresses general provisions affecting the governing body of a municipality. See generally TEX. LOC. GOV'T CODE §§ 21.001–.105. Section 21.003 relates to volunteer service by members of a municipal governing body. See id. § 21.003. Opinion JC-0564 concluded that the statute was the dispositive law over the common-law with respect to volunteer fire departments.³ Tex. Att'y Gen. Op. No. JC-0564 (2002) at 4; see also Tex. Att'y Gen. Op. No. GA-0084 (2003) 5–6, n.8.

Local Government Code section 21.003 provides that

[a] member of the governing body of a municipality may serve as a volunteer for an organization that protects the health, safety, or welfare of the municipality regardless of whether the organization is funded or supported in whole or part by the municipality if the governing body adopts a resolution allowing members of the governing body to perform service of that nature.

TEX. LOC. GOV'T CODE § 21.003. Opinion JC-0564 construed section 21.003's predecessor to mean that "the dual service it permits is authorized" only if the city council adopts the appropriate resolution.⁴ Tex. Att'y Gen. Op. No. JC-0564 (2002) at 4. We reach the same conclusion based on the plain text of section 21.003. Section 21.003 expressly allows the dual service "if the governing body adopts a resolution . . . ." TEX. LOC. GOV'T CODE § 21.003 (emphasis added). The word "if" is a conjunction that "introduc[es] a conditional clause." NEW OXFORD AMERICAN DICTIONARY 865 (3d ed. 2010). It means "on the condition or supposition that; in the event that[.]" Id.; see also Dao v. Mission Bend Homeowners Ass'n, Inc., No. 01-20-00597-CV, 2022 WL 3031619, at *5 (Tex. App.—Houston [1st Dist.] Aug. 2, 2022, no pet.) ("The word 'if' at the beginning of the clause signals the provision's application is conditional."); Bagnall v. Bagnall, 225 S.W.2d 401, 402 (Tex. 1949). By its plain language section 21.003 allows the contemplated dual service only if the governing body adopts the referenced resolution.

You tell us the City has not adopted a resolution under section 21.003. See Request Letter at 1, 3. Accordingly, a court would likely conclude, in the absence of the resolution, that section 21.003 prohibits the simultaneous service of a person as a member of a volunteer fire department and member of the City Council.⁵

S U M M A R Y

Absent a resolution adopted by the Iraan City Council under Local Government Code section 21.003, the dual service of a person as a member of a volunteer fire department and member of the City Council is prohibited.

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

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

¹ See Letter from Honorable Laurie K. English, 112th Judicial Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 14, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0486KP.pdf ("Request Letter").

² The language of now-section 21.003 was originally adopted as section 21.002. See Act of Apr. 20, 2001, 77th Leg., R.S., ch. 42, 2001 Tex. Gen. Laws 73. It was renumbered to section 21.003 in 2003. See Act of May 20, 2003, 78th Leg., R.S., ch. 1275, § 2(104), 2003 Tex. Gen. Laws 4140, 4146. The language of section 21.003 is identical to the language of former section 21.002.

³ The constitutional prohibition on dual office holding does not apply here because "[a] volunteer fire fighter does not hold an 'office' under article XVI, section 40 of the Texas Constitution." Tex. Att'y Gen. Op. No. JC-0199 (2000) at 1.

⁴ Opinion JC-0564 relied on the principle of construction that "[w]hen a right or 'power is granted the method of its exercise prescribed, the prescribed method excludes all others.'" Tex. Att'y Gen. Op. No. JC-0564 (2002) at 4 (quoting Foster v. City of Waco, 255 S.W. 1104, 1105 (Tex. 1923)). It determined that in enacting section 21.003 the Legislature intended to preempt the common law and "to occupy the field with regard to that aspect of self-employment involving dual service on city councils and volunteer fire departments." Id. Opinion JC-0564 determined that "dual service in those specific instances is necessarily prohibited unless a city council adopts the kind of resolution described in section [21.003]." Id. The opinion concluded that "in order for a member of a governing body of a municipality to simultaneously serve as a member of a volunteer fire department, a municipality must affirmatively adopt the kind of resolution described in section [21.003] . . . ." Id. at 5.

⁵ As your second question is contingent on a contrary conclusion, we need not address it. See Request Letter at 1 (asking "if dual service is permitted, would the individuals serving in the dual role be allowed to vote on City Council Agenda items that impact the VFD").