Can an elected Texas constable also work as a school resource officer for a district in the constable's precinct?

Plain-English summary

The Hardin County Attorney asked whether an elected constable could serve as a school resource officer for a district in the constable's precinct, with deputy constables serving as resource officers on other campuses. The AG broke it into two questions: how a district may obtain a resource officer, and whether a constable's status creates a dual-officeholding problem.

On the first, the AG concluded a school resource officer may not be retained as an independent contractor. Education Code section 37.081 lets a board of trustees get resource officers by entering a memorandum of understanding with the law enforcement agency, county, or municipality that employs the peace officer, and that memorandum must be an interlocal contract under the Interlocal Cooperation Act. The statute and the definition of "school resource officer" both tie the officer to an "employing political subdivision," and a separate provision (subsection 37.081(a)(1)) shows the Legislature knew how to authorize an "employ or contract with" arrangement for security personnel but did not use that language for resource officers. So the district gets a resource officer through the employer, not through a direct independent-contractor deal with the officer.

On the second, assuming a proper memorandum of understanding, the AG found neither the constitutional nor the common-law dual-officeholding bars apply. A constable holds a civil office of emolument, so the constitutional prohibition (article XVI, section 40(a)) would matter only if the resource-officer role were also an office of emolument. But the Interlocal Cooperation Act says a person acting under an interlocal contract does not, because of that action, hold more than one office of emolument, so the constitutional bar is not triggered. The common-law incompatibility doctrine has three prongs. For two of them (self-appointment and conflicting loyalties), both positions must be "offices," and under the Aldine test a school resource officer is likely not an officer, because the district sets the officer's jurisdiction and duties and can supervise performance, so the officer does not act largely independent of the control of others. For the third prong (self-employment), the question is whether the constable would supervise the resource-officer role; nothing makes the constable a supervisor of resource officers, and the school board is responsible for assigning duties to avoid that, so the prong is not triggered if the board does so.

Finally, the AG flagged practical problems even where no legal bar exists. A constable has mandatory statutory duties (serving process, attending justice court), and depending on how many deputies and reserve deputies the precinct has, putting the constable and deputies on school campuses might not leave enough resources to keep those statutory duties covered.

What this means for you

If you are a school district board considering a constable as a resource officer

Based on this opinion, you cannot hire a school resource officer as an independent contractor. You must enter a memorandum of understanding (an interlocal contract) with the agency, county, or municipality that employs the officer. A constable can serve under that arrangement, but your board should assign duties so the constable does not end up supervising the resource-officer position, which keeps the common-law self-employment problem off the table.

If you are an elected constable weighing this role

The dual-officeholding bars (constitutional and common-law) likely do not stop you from serving as a school resource officer under a proper interlocal memorandum of understanding. But you still have to perform your mandatory constable duties, and you and the commissioners court should make sure committing yourself and deputies to campuses does not leave the precinct's statutory work uncovered.

If you advise a county or district on these arrangements

The decisive points are the interlocal-contract requirement in section 37.081 (no direct independent-contractor hiring of a resource officer), the shield in Government Code section 791.004 against the constitutional dual-office bar, and the Aldine analysis showing a resource officer is likely not an "office." The opinion expressly does not reach the requestor's second question about an independent-contractor constable, and it leaves untouched the other ways districts can get security personnel under subsections 37.081(a)(1), (3), and (4).

Common questions

Q: Can a district hire a school resource officer as an independent contractor?
A: No. The AG concluded a resource officer must be obtained through an interlocal memorandum of understanding with the officer's employing political subdivision, not by a direct independent-contractor arrangement.

Q: Does the constitution's one-office rule stop a constable from being a resource officer?
A: No. The Interlocal Cooperation Act (section 791.004) says acting under an interlocal contract does not make a person hold more than one office of emolument, so article XVI, section 40(a) does not bar it.

Q: Is a school resource officer an "office" for incompatibility purposes?
A: Likely not. Under the Aldine test, because the district sets the officer's jurisdiction and duties and can supervise performance, the officer does not act largely independent of the control of others.

Q: Are there still reasons this might not work in practice?
A: Yes. The constable has mandatory statutory duties, and assigning the constable and deputies to campuses could leave too few resources to cover serving process and attending justice court.

Background and statutory framework

Education Code section 37.081 governs how a district obtains security personnel, school resource officers, and school district peace officers. Subsection 37.081(a)(2) requires a memorandum of understanding with the law enforcement agency, county, or municipality that employs the officer, and subsection 37.081(a-2)(1) requires that memorandum to be an interlocal contract under the Interlocal Cooperation Act (Government Code chapter 791). A "school resource officer" is a peace officer assigned by the officer's "employing political subdivision" (Occupations Code section 1701.601). Because subsection 37.081(a)(1) separately allows a district to "employ or contract with" security personnel, the AG inferred the Legislature deliberately limited resource officers to the employing-subdivision route.

A constable holds a civil office of emolument (article XVI, sections 40(a) and 61(b); article V, section 18(a); State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)). Government Code section 791.004 provides that acting under an interlocal contract does not create a second office of emolument (White v. Liberty Eylau Indep. Sch. Dist., 920 S.W.2d 809 (Tex. App.—Texarkana 1996, writ denied)). Under the common-law incompatibility doctrine (Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)), the self-appointment and conflicting-loyalties prongs require both positions to be offices, and the Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955), test asks whether a position exercises a sovereign function largely independent of others' control. Because the district sets the resource officer's duties (section 37.081(d), (d-1), (d-2)(1)) and may supervise performance (section 791.013), the officer is likely not an office. On self-employment, the constable's duties (Local Government Code section 86.021; Code of Criminal Procedure article 2.12(2)) do not make the constable a supervisor of resource officers, so long as the board assigns duties accordingly.

Citations and references

Statutes:

• Tex. Educ. Code § 37.081 — security personnel, school resource officers, and the interlocal-contract requirement
• Tex. Gov't Code § 791.004 — acting under an interlocal contract is not dual officeholding
• Tex. Occ. Code § 1701.601 — definition of school resource officer

Key cases:

• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955) — test for whether a position is an "office"
• White v. Liberty Eylau Indep. Sch. Dist., 920 S.W.2d 809 (Tex. App.—Texarkana 1996, writ denied) — interlocal contracts do not violate the dual-office bar
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994) — emolument defined; one civil office of emolument

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0447
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0447.pdf

Original opinion text

PAXTON
ATTORNEY GENERAL OF TEXAS

October 23, 2023

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

Opinion No. KP-0447

Re: Whether an elected constable may serve as a student resource officer, employed as an independent contractor, with a school district located in the constable's precinct (RQ-0506-KP)

Dear Mr. Minick:

You ask several questions about whether an elected constable may serve as a school resource officer with a school district in the constable's precinct.¹ You tell us that "[a] school district . . . has requested to hire the elected constable as a [school] resource officer" on one of the school district's campuses while also employing deputy constables to serve as school resource officers on other campuses.² Request Letter at 1. You do not explain the nature of your underlying concern, nor do you supply any additional information regarding the factual scenario. See id. Within this limited context, you first ask whether an elected constable may be retained "as an independent contractor" to serve as a school resource officer in a school district within the constable's precinct. Id.

A court would likely conclude that a school resource officer may not be retained as an independent contractor.

Education Code section 37.081 addresses the use of security personnel, school resource officers, and school district peace officers by an independent school district. See TEX. EDUC. CODE § 37.081. For the provision of school resource officers, subsection 37.081(a)(2) authorizes the board of trustees of any school district to "enter into a memorandum of understanding with a local law enforcement agency or a county or municipality that is the employing political subdivision of commissioned peace officers . . . ." Id. § 37.081(a)(2). Such a memorandum of understanding must "be in the form of an interlocal contract under Chapter 791, Government Code[.]" Id. § 37.081(a-2)(1); see also generally TEX. GOV'T CODE §§ 791.001–.037 (Interlocal Cooperation Act) (authorizing local governments to contract with each other to perform governmental functions and services and prescribing the requirements for such a contract). State law defines a school resource officer as a "peace officer who is assigned by the officer's employing political subdivision" to provide certain services at a public school. TEX. OCC. CODE § 1701.601. Thus, the school district may retain the services of a school resource officer only by entering into an interlocal contract with the local law enforcement agency or county that employs the peace officer, and not directly with the peace officer that will serve as a school resource officer.

Education Code subsection 37.081(a)(2) and Occupations Code section 1701.601 both refer to the school resource officer's "employing political subdivision." TEX. EDUC. CODE § 37.081(a)(2); TEX. OCC. CODE § 1701.601. In contrast, Education Code subsection 37.081(a)(1) authorizes a school district to "employ or contract with security personnel[.]" TEX. EDUC. CODE § 37.081(a)(1) (emphasis added). This distinction suggests the Legislature is aware of the difference between an employment and an independent contractor arrangement but has chosen, with respect to school resource officers, to authorize services only through an officer's employment with his employing political subdivision. Thus, a court would likely conclude that a school resource officer may not be retained by a school district as an independent contractor.³

The dual-officeholding prohibition of Texas Constitution article XVI, subsection 40(a) does not bar a constable from acting as a school resource officer under a memorandum of understanding that complies with Education Code section 37.081.

As an alternative, you ask whether the constable may serve as a school resource officer "under a contract to employ the constable and deputy constables with the school district to provide [school] resource officers to a school district[.]" Request Letter at 1. You do not specify the source for your concern but, assuming that such a contract is a memorandum of understanding that complies with the requirements of Education Code section 37.081, we consider whether the potential school resource officer's status as an elected constable implicates either constitutional or common-law dual-officeholding prohibitions.

Article XVI, subsection 40(a) of the Texas Constitution provides, with certain exceptions not relevant here, that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument[.]"⁴ TEX. CONST. art. XVI, § 40(a). The prohibition applies only if both positions are offices of emolument. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). An emolument is "a pecuniary profit, gain, or advantage." Id. This office has consistently concluded that a constable holds an office of emolument for purposes of article XVI, subsection 40(a). See, e.g., Tex. Att'y Gen. Op. Nos. KP-0122 (2016) at 1, GA-1036 (2014) at 1, GA-0540 (2007) at 2; see also TEX. CONST. arts. V, § 18(a) (providing for the office of constable), XVI, § 61(b) (providing for the compensation of constables on a salary basis). Thus, whether article XVI, subsection 40(a) prohibits the dual service at issue depends on whether a school resource officer likewise holds an office of emolument.

Section 791.004 of the Interlocal Cooperation Act (the "Act") provides that "[a] person acting under an interlocal contract does not, because of that action, hold more than one civil office of emolument or more than one office of honor, trust, or profit." TEX. GOV'T CODE § 791.004. Because a school resource officers' services may be retained by a school district only through an interlocal contract under the Act, he or she is necessarily a person acting under an interlocal contract for purposes of section 791.004 and, therefore, does not hold an office of emolument. See TEX. EDUC. CODE § 37.081(a-2)(1). Thus, article XVI, subsection 40(a) of the Texas Constitution does not bar a constable from serving as a school resource officer. See White v. Liberty Eylau Indep. Sch. Dist., 920 S.W.2d 809, 812 (Tex. App.—Texarkana 1996, writ denied) (stating that, by enacting section 791.004, the Legislature "quite clearly intended . . . to establish that a person acting in two or more official capacities pursuant to an interlocal contract does not violate article [XVI], section 40 of the constitution").

The common-law doctrine of incompatibility does not bar a constable from acting as a school resource officer under a memorandum of understanding that complies with Education Code section 37.081.

The common-law doctrine of incompatibility of offices 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). First, self-appointment incompatibility precludes an officer from being appointed to a position over which the officer has appointment authority. See id. Second, self-employment incompatibility prohibits one person from holding an office and an employment that the office supervises. See id.; Tex. Att'y Gen. Op. No. KP-0265 (2019) at 2. Third, conflicting-loyalties incompatibility prohibits a person "from simultaneously holding two positions that would prevent him or her from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. KP-0265 (2019) at 2 (quoting Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2). In order for the first and third prongs—self-appointment and conflicting loyalties—to apply, both positions must be "offices." Id. The Texas Supreme Court established a test for determining whether a person occupying a particular position is an officer for common-law incompatibility purposes in Aldine Independent School District v. Standley. 280 S.W.2d 578, 583 (Tex. 1955). The determinative inquiry under Aldine is whether the position exercises any sovereign function of government for the benefit of the public largely independent of the control of others. Id.

This office has previously determined that, as an elected constitutional officer, a constable exercises a sovereign function of government for the benefit of the public and holds his or her position largely independent of the control of others. See Tex. Att'y Gen. Op. No. GA-0402 (2006) at 1; TEX. CONST. art. V, § 18(a) (providing that a constable shall be elected from each precinct). We next consider whether a school resource officer meets the Aldine test. A school resource officer's law enforcement duties are determined by the school district board of trustees. TEX. EDUC. CODE § 37.081(d); see also id. § 37.081(d)(3) (requiring the duties to be included in "any memorandum of understanding providing for a school resource officer"). Such duties "must include protecting: (1) the safety and welfare of any person in the jurisdiction of the . . . resource officer . . . ; and (2) the property of the school district" but may not include "routine student discipline or school administrative tasks" or other duties that, in the judgement of the school district board of trustees, are "better addressed by other district employees." Id. § 37.081(d-1), (d-2)(1), (d-4). In addition, an interlocal cooperation agreement, through which a school resource officer must be retained, authorizes the supervision of performance under the agreement by various methods. See TEX. GOV'T CODE § 791.013. Because the school resource officer's jurisdiction and job duties are determined by the school district and his or her performance is potentially subject to supervision, a court would likely conclude that a school resource officer does not act largely independent of the control of others and is likely not an "officer" for purposes of either self-appointment or conflicting-loyalties incompatibility. And because the two positions at issue are likely not both "offices," neither the self-appointment nor the conflicting-loyalties prongs of common-law incompatibility are implicated here.

We turn to the remaining common-law incompatibility prong—self-employment incompatibility. This incompatibility arises when an officer is employed in a position over which the officer has employment authority. Tex. Att'y Gen. Op. No. KP-0434 (2023) at 2. The primary consideration of this employment authority for purposes of self-employment incompatibility is the supervision of the subordinate by the officer. Id. Here, the concern is whether, as constable, the person would have any supervisory role over the school resource officer position he or she would be simultaneously holding. We briefly compare the duties of an elected constable and the duties of a school resource officer.

A constable's specific statutory powers and duties include serving process and attending justice court. See generally TEX. LOC. GOV'T CODE § 86.021. A constable is also a peace officer pursuant to article 2.12(2) of the Code of Criminal Procedure, which authorizes the constable to "preserve the peace . . . [by] all lawful means" and "prevent or suppress crime" according to law. TEX. CODE CRIM. PROC. arts. 2.12(2), 2.13(a), (b)(1). As previously discussed, a school resource officer performs certain law enforcement duties, including protecting the safety and welfare of any person within the school resource officer's jurisdiction and the property of the school district. TEX. EDUC. CODE § 37.081(d-1), (d-2)(1). While nothing in the statute suggests that a constable supervises school resource officers, the school district board is ultimately responsible for assigning the school resource officer's duties in a way that avoids this scenario. Assuming the school district board does so, the self-employment prong of the common-law doctrine of incompatibility does not bar a constable from serving as a school resource officer.

Other considerations may affect the ability of a constable to serve as a school resource officer.

That neither constitutional nor common law dual officeholding prohibitions necessarily bar the contemplated arrangement does not, however, address the practical difficulties of serving in the two positions simultaneously. See Tex. Att'y Gen. Op. Nos. GA-0569 (2007) at 2 (acknowledging that "[e]ven though no legal incompatibility exists, conflict may still arise between the duties of the two positions"), GA-0214 (2004) at 4 (noting that despite having no legal bar to the dual service, "individual peace officer[s] may be subject to statutes, rules, ordinances, or policies that limit additional employments"). For example, the constable must perform the statutory duties placed upon him or her as an elected officeholder. See, e.g., TEX. LOC. GOV'T CODE § 86.021 (providing that the constable "shall execute and return as provided by law each process, warrant, and precept that is directed to the constable" and "shall attend each justice court held in the precinct"); see also Tex. Att'y Gen. Op. No. JC-0413 (2001) at 1–2 (discussing the mandatory nature of both these duties and noting that a constable who believes he "has insufficient time to fulfill both duties" may apply to the commissioners court for the appointment of a deputy); TEX. LOC. GOV'T CODE §§ 86.011(a) (authorizing the commissioners court to approve the hiring of a deputy constable), 86.012(a) (authorizing the commissioners court to approve the appointment of reserve deputy constables). Depending on the total number of deputy constables and reserve deputy constables in the precinct, an arrangement whereby the constable and some number of deputy constables serve as school resource officers may not leave sufficient resources to ensure that the constable's statutory duties remain fulfilled.

¹ See Letter from Honorable Matthew E. Minick, Hardin Cnty. Att'y, to Off. of the Tex. Att'y Gen., Op. Comm. at 1 (Apr. 14, 2023) ("Request Letter"). Although you ask about a "student" resource officer, we assume you to ask about a school resource officer, defined by statute as a "peace officer who is assigned by the officer's employing political subdivision to provide a police presence at a public school, safety or drug education to students of a public school, or other similar services." TEX. OCC. CODE § 1701.601.

² We assume for purposes of your questions that the constable and the deputy constables at issue are from the same precinct.

³ As your second question is premised on an affirmative answer to this question, we decline to address it. See Request Letter at 1 (asking about an elected constable serving as an independent contractor under a proposed scenario). Our conclusion is limited to retaining the services of a school resource officer pursuant to Education Code subsection 37.081(a)(2) and does not affect the ability of school districts and charter schools to secure the services of security personnel pursuant to subsections 37.081(a)(1), (3), or to commission their own peace officers pursuant to subsection 37.081(a)(4).

⁴ 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 the terms "civil office" and "public office").

SUMMARY

Education Code section 37.081 authorizes a school district to retain the services of a school resource officer. A court would likely conclude that a school resource officer may not be retained as an independent contractor. Neither Texas Constitution article XVI, subsection 40(a) nor the common-law doctrine of incompatibility prohibit a constable from acting as a school resource officer under a memorandum of understanding to retain the constable that complies with Education Code section 37.081.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee