      OFFKE   OF THE   ATTORNEY   GENERAL.   STATE   OF TEXAS

     JOHN       CORNYN




                                                      August 16,200O



D.C. Jim Dozier, J.D., Ph.D.                                    Opinion No. JC-0270
Executive Director
Texas Commission on Law Enforcement                             Re: Whether       an elected     constable    may
   Officer Standards-Education                                  simultaneously   serve as a municipal tire fighter
6330 U.S. Highway 290 East, Suite 200                           (RQ-0206.JC)
Austin, Texas 78723


Dear Dr. Dozier:

         On behalf of the City of Marshall Police Department, you have requested our opinion as to
whether an elected constable may simultaneously serve as a municipal tire tighter. For the reasons
indicated below, we conclude that he may do so.

         A letter accompanying your request explains that a tire fighter employed by the City of
Marshall “has won election in the Democratic primary to the office of constable. This civil servant
has advised others in the department that he does not intend to resign his job with the tire department
upon assuming offrice, and instead, intends to occupy both positions simultaneously.”           Request
Letter.’

         The doctrine of dual office holding comes into play when one individual holds two or more
positions at the same time. One aspect of the doctrine is constitutional, and relates primarily to
article XVI, section 40 of the Texas Constitution.     That provision proscribes the simultaneous
holding of two “offices of emolument.”      You do not suggest that it is applicable here. Indeed, at
least since Attorney General Opinion DM-212 (1993), it has been clear that a municipal tire tighter
does not hold a “‘public office.” See also Tex. Att’y Gen. LOS-95-048, 93-027.

        The other branch of dual office holding is the doctrine of common-law incompatibility.    The
courts have in turn recognized two kinds of incompatibility.    One, derived from Ehlinger Y. Clark,
8 S.W.2d 666 (Tex. 1928), prohibits an individual from appointing himselfto another position. In
1977, the attorney general extended this doctrine to situations of “self-employment,”     so that, for
example, a municipal employee may not also serve as a council member of the same city. See Tex.
Att’yGen.LA-114(1977);seealsoTex.         Att’y Gen. LOS-97-034,90-045, 89-002. Sinceaconstable




        ‘Letter from Charles W. Williams, Chief of Police, City of Marshall, to Dr. Jim Dozier, Executive Director,
Texas Commission on Law Enforcement Standards-Education       (Mar. 15,ZOOO) (on file with Opinion Committee).
D.C. Jim Dozier, J.D., Ph.D - Page 2                     (JC-0270)




is elected, and a municipal fire fighter is appointed by officers of the municipal government, neither
“self-appointment” nor “self-employment”        incompatibility is applicable to the situation you pose.

         The other judicially-based     aspect of incompatibility was first recognized in Thomas v.
Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm’n App. 1927,
judgm’t adopted). That opinion held that the O~$CESof school trustee and city alderman were
 incompatible, because, if both were held by a single individual, one office might impose its policies
 on the other or subject it to control in some other way. See Tex. Att’y Gen. Op. No. DM-55 (1991).
 The attorney general has denominated this branch of incompatibility “conflicting loyalties.” See,
 e.g., Tex. Att’y Gen. Op. Nos. DM-311 (1994) JM-1266 (1990); Tex. Att’y Gen. LO-95-029. It is
 this aspect of the doctrine that you seek to invoke in the present instance.

          Thomas, 290 S.W. 152, and Turner v. Trinity Independent School District, 700 S.W.2d 1
(Tex. App.-Houston     [14th Dist.] 1983, no writ), the only judicial decisions to deal directly with
conflicting loyalties incompatibility,   specifically involve situations in which both positions are
“offices.” Furthermore, a line of attorney general opinions, since at least 1990, has held that, for the
conflicting loyalties doctrine to be applicable, both positions must be “offices.” See Tex. Att’y Gen.
Op. Nos. JC-0054 (1999) JM-1266 (1990); Tex. Att’y Gen. LOS-96-148, 052, 95-029, 93.027.
Thus, it is now well established that “conflicting loyalties” incompatibility does not prohibit an
individual from holding two positions where one ofthose positions does not constitute an “office.”

         The City of Marshall Police Department specifically takes issue with Attorney General
Opinion DM-156, wherein this office found that, since the position of “assistant tire chief with the
City of Houston Fire Department is not an office but rather an employment, the common-law
doctrine of incompatibility does not preclude a deputy constable from also serving as assistant tire
chief.” Tex. Att’y Gen. Op. No. DM-156 (1992) at 5. A brief from the City of Marshall contends
that, for two reasons, this conclusion is incorrect. We will respond to each of these arguments in
turn.

        The brief first notes that, in State e.x rel., Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App.
1994) (en bane), the Court of Criminal Appeals “analyzed the question of whether or not the
common-law doctrine of incompatibility barred an Assistant Attorney General from serving as an
Assistant District Attorney,” which it asserts indicates that the court in that case had accepted the
argument that conflicting loyalties incompatibility could apply to the two positions. Key Brief.’ We
disagree. The court actually said: “Assuming arguendo that the incompatibility doctrine applies to
a person serving as an assistant attorney general, we fail to see how such an ‘office conflicts with
the position of assistant district attorney.” Pirtle, 887 S.W.2d at 929. In our opinion, the court in
Pirtle did not intend to call into question the principle that conflicting loyalties incompatibility
applies only when both positions are “offices.”




         ‘Brief from Thomas W. Key, Assistant City Attorney, City of Marshall, to Elizabeth Robinson,   Chair, Opinion
Committee, Office of the Attorney General (Apr. 26, 2000) (on tile with Opinion Committee).
D.C. JimDozier,    J.D., Ph.D - Page 3             (X-0270)




         The brief next contends that the “state employee” proviso, added to article XVI, section 40,
of the Texas Constitution in 1972, was intended to relieve state employees from the effect of
common-law incompatibility, and that therefore the doctrine of incompatibility applies to all other
public employees. Key Brief, supra note 2, at 2. This proviso declares that state employees and
others who receive all or part of their compensation from state funds, and who are not state officers,
shall not be barred from serving as members ofthe governing bodies of local governmental districts,
but shall receive no salary for doing so. TEX. CONST. art. XVI, 5 40. Although it is strange that this
provision was inserted into a constitutional provision that otherwise relates strictly to “officers,”
there is no evidence that its adoption was intended to have any implications for the incompatibility
doctrine. Indeed, this office has since 1977 held that the proviso is not sufficient to overcome self-
employment incompatibility.      See Tex. Att’y Gen. LA-1 14 (1977). As has been noted, the “state
employee” proviso means simply that article XVI, section 40 may not be used to prohibit dual
service for persons affected by its terms. Tex. Att’y Gen. LO-96-109. And even though a dual
office holding situation may be permitted under article XVI, section 40, opinions of this office
conclude that it may yet run afoul ofincompatibility.    See Tex. Att’y Gen. Op. No. JM-203 (1984);
Tex. Att’y Gen. LO-96-004.

         Finally, the brief urges that the duties of constable will frequently “conflict” with the duties
of a municipal tire fighter. Key Brief, supra, note 2, at 2-3. As we have said, this office has
consistently held that conflicting loyalties incompatibility is not applicable when, as here, one
position is not an “office.” But the mere absence of common-law incompatibility as a legal bar to
dual employment is not a legal guarantee of dual employment. In Attorney General Letter Opinion
96-l 09, two employees of Stephen F. Austin State University had received their parties’ nomination
for the offices of county commissioner and constable. The university was concerned that the
employees would not be able successfully to till both their elective offices and their university
positions. This office concluded that a rule of the university requiring executive approval for all
outside employment was valid on its face, and that the university could evaluate whether outside
employment as a public officer violated the policy. This position was affirmed in Dudley Y. Angel,
209 F.3d 460 (5th Cir. 2000); see also Tex. Att’y Gen. Op. No. JM-93 (1983). Likewise, in the
situation you describe, if the City of Marshall has a rule requiring approval of outside employment
and finds that its fire tighter is unable satisfactorily to fulfill the duties of the position of municipal
fire fighter while serving in the office of constable, it may act accordingly.
D.C. Jim Dozier, J.D., Ph.D - Page 4          (JC-0270)




                                       SUMMARY


                       The common-law doctrine of incompatibility does not bar an
               individual from simultaneously serving as an elected constable and
               a municipal tire fighter.




                                            Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
