Mr. James B. Adams                Opinion No. JM-588
Director
Texas Department of               Re:   Whether article XVI, section
   Public Safety                  40 of the Texas Constitution pro-
P. 0. Box 4087                    hibits DPS officers from serving as
Austin, Texas   78773             members of the governing bodies of
                                  school districts, cities, towns, or
                                  other local governmental bodies

Dear Mr. Adams:

     You ask whether articl,eXVI, section 40, of the Texas Constitu-
tion prohibits commissionei.Department of Public Safety [DPS] officers
from serving on the governing bodies of school districts, cities,
towns, or other local gove.cnmentaldistricts. Article XVI, section
40, provides in part:

            Sec. 40. No person shall hold or exercise at
         the same time. more than one civil office of
         emolument. . . .

             .    .   .   .

         State employees or other individuals who receive
         all or part of their compensation either directly
         or indirectly frtilfunds of the State of Texas and
         who are not St&    officers, shall not be barred
         from serving as &:mbers of the governing bodies of
         school districts, cities, towns. or other local
         governmental districts; provided, however, that
         such State employees or other individuals shall
         receive no salary for serving as members of such
         governing bodies. (Emphasis added).

     Attorney General Opinion H-1027 (1977) considered whether
commissioned officers of the Department of Public Safety were
I,
 appointed officers" required to take the constitutional oath of
office. See Tex. Const. art:.XVI, 51. The opinion concluded that DPS
officers were appointed officers who were required to take the oath,
reasoning as follows:

          Rangers and offic'erscommissioned by the Director
          of   the   Department  of   Public   Safety   are



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Mr. James B. Adams - Page 2   (JM-588)


                                                                         ---.



         specifically des:.gnated as 'peace officers' by
         article 2.12 of the Code of Criminal Procedure.
         Policemen have bean described by the Supreme Court
         of Texas as 'pub!& officers,' Sawyer v. City of
         San Antonio, 234 S.W.2d 398, 401 (Tex. 1950). We
         have also conclu(.edthat 'a uoliceman occuoies a
         civil office.' I,etter Advisory No. 63 (1973) at
         2. We believe that officers commissioned by the
         Department of Public Safety likewise hold a
         'public office' and a 'civil office' and must,
         therefore, take the constitutional oath of office
         before entering upon their duties.         Indeed,
         officers of the Highway Patrol Division of the
         Department of :?nblic Safety are statutorily
         required to take the oath.         V.T.C.S. art.
         6701d-11. 016. ---
                         Se,eV.T.C.S.. art. 4413(12).

Section (4) of article 4413(11) states that officers of the Texas
Rangers "shall be clothed %J:Lth
                               all the powers-of peace officers, and
shall aid in the execution of the laws." Officers of the Highway
Patrol Division are "clothed with all the powers and authority which
is . . . given to members of Texas Banger force." V.T.C.S. art.
4413(12), -§(4). See also ,$win v. State.-177 S.W.2d 970 (Tex. Grim.
App. 1944) (city policeman and deputy sheriff are officers); Attorney
General Opinion V-229 (19b.r) (members of state highway patrol -are
officers).

     We conclude that compensated DPS officers are subject to article
XVI, section 40, of the Texas Constitution, and may not hold a second
civil office of emolument.

     A compensated officer is not prohibited by article XVI, section
40 from holding a second cffice to which no emoluments attach. See,
s,    Educ. Code 123.19(e) (trustees of independent school district do
not receive emoluments). The personnel of your agency are, however,
also subject to a statutor)'prohibition on political activity:

         No person in the Department shall contribute any
         money or other thing of value for political
         purposes, nor shall any person in the Department
         engage in politi~:alactivities or campaign for or
         against any candLdate for any public office in
         this state. Any PIersonviolating any provision of
         this subsection s,hall forfeit his position with
         the Department.

V.T.C.S. art. 4413(g), P(2). See V.T.C.S. art. 6252-9f. 55. This
provision forbids DPS perrzonnel~om engaging in partisan political
activities, including campaigning for an elected office. Attorney
General Opinion MW-149 (1980); -see Attorney General Opinion M-1099



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        Mr. James B. Adams - Page 3   (JM-588)
    .



P



        (1972). The following pro\%sion of article XVI, section 40 overrides
        article 4413(g), section (2) with respect to DPS employees:

                  State employees or other individuals who receive
                  all or Dart of their comoensation either directlv
                  or indirectly from funds bf the State of Texas and
                  who are not Stat,e officers, shall not 'be barred
                  from serving as m&bers of the governing bodies of
                  school districts, cities, towns, or other local
                  governmental districts; provided, however, that
                  such State emplayees or other individuals shall
                  receive no salar:rfor serving as members of such
                  governing bodies.

        Article XVI, section 40 pr'otects a state employee from dismissal on
        the ground that he is a cs,ndidatefor one of specified local offices
        or holds such an office. Attorney General Opinion MW-149 (1980);
        Attorney General Opinion N-,659 (1975). Department of Public Safety
        Officers are not, howeve,:!,covered by the quoted constitutional
        provision. Articie 4413(9:, section (2) would prohibit a DPS officer
        from running for or holding a partisan office in local government.

             Particular instances cf dual office holding may also be barred by
        the common law doctrine oE~incompatibility or by the separation of
        powers doctrine embodied in article II. section 1, of the Texas
        Constitution. See Thomas v. Abernathy County Line Independent School
        District, 290 m.     152 (Tax. Comm'n App. 1927); Attorney General
        Opinions JM-203, JM-141 (1484).

                                      SUMMARY

                       Commissioned~ officers of the Department of
                  Public Safety are civil officers within article
                  XVI, section 40. Article 4413(g). section (2),
                  V.T.C.S., prohitits them from campaigning for
                  election to a partisan political office or holding
                  such an office.

                                                 Very t uly yours,


                                                  J     A
                                                 JIM     MATTOX
                                                 Attorney General of Texas

        JACK RIGHTOWRR
        First Assistant Attorney General

        MARY KELLER
        Executive Assistant Attorney General



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Mr. James B. Adam   - Page 4   (JM-588)
                                          .




RICK GILPIN
Chairman, Opinion Comittee

Prepared by Susan L. Garrism
Assistant Attorney General




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