     OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN         CORNYN




                                                    June 5,200l


The Honorable Virginia K. Treadwell                        Opinion No. JC-03 85
McCulloch County Attorney
Courthouse, Room 302                                       Re: Whether a county commissioner may serve as
Brady, Texas 76825                                         a voluntary fire fighter (RQ-0335-JC)

Dear Ms. Treadwell:

        You ask whether a county commissioner may serve as a volunteer fire fighter for an
unincorporated city in his county. For the reasons explained below, we conclude that he may do so.

         You explain that a newly elected commissioner for McCulloch County has served as a
member of the volunteer fire department for the City of Lohn since 1975. Lohn is an unincorporated
town of approximately 100 persons that is located in McCulloch County.’ As a volunteer fire
fighter, the commissioner “responds to calls and attends monthly meetings,” but receives no
compensation for his services.*

          You indicate that the commissioners court donates $400 per year to each of the six volunteer
fire departments in McCulloch County, including Lohn. “There are no stipulations or conditions
placed on how the money is spent and the commissioners have no control over how the money is
utilized.“3 Furthermore, the “Lohn VFD is not under the control of McCulloch County. It is not
housed on county property and is not led by a chief who must be approved by the county
commissioners co~rt.“~

        Article XVI, section 40 of the Texas Constitution           prohibits an individual    from
simultaneously holding more than one office of emolument. See TEX. CONST. art. XVI, § 40. A
volunteer fire fighter does not hold an office. See Tex. Att’y Gen. Op. No. H-665 (1975) at 2; Tex.




         ‘See Letter from Honorable Virginia K. Treadwell, McCulloch County Attorney,    to Honorable   John Comyn,
Texas Attorney General (Jan. 2,200l) (on file with Opinion Committee).




           Vd.

           4Brief from Honorable Virginia K. Treadwell, McCulloch County Attorney, to Honorable   John Comyn, Texas
Attorney    General, at 2 (Mar. 19,200l) (on file with Opinion Committee).
The Honorable    Virginia K. Treadwell   - Page 2     (JC-0385)




Att’y Gen. LO-93-054, at 1; Tex. Att’y Gen. LA- 154 (1978) at 1. Thus, article XVI, section 40 does
not preclude the commissioner from serving as a volunteer fire fighter.

         The common-law doctrine of incompatibility bars a person from holding an office while at
the same time holding an employment that is subordinate to that office. See Tex. Att’y Gen. Op. No.
DM-55 (1991) at 1; Tex. Att’y Gen. LO-97-034, at 1; LO-90-045, at 1; Tex. Att’y Gen. LA-114
(1977) at 2-3. In Attorney General Letter Opinion 94-070, this office considered whether common-
law incompatibility prohibited a member of the Hudson City Council from serving as a member of
the Hudson Volunteer Fire Department. See Tex. Att’y Gen. LO-94-070. In that instance, the city
owned the land on which the fire station was located and leased it to the volunteer fire department
for $1 .OOper year; and the city contributed $7000 per year to the maintenance of the department.
See id. The opinion concluded that the doctrine of incompatibility      did not bar the dual service,
because “[tlhe city does not control the HVFD or determine the duties of volunteer fire fighters.”
Id. at 2. In our view, this opinion controls the situation you present. The commissioners court of
McCulloch County neither controls the Lohn Volunteer Fire Department nor determines the duties
of its members.

         Attorney General Opinion JC-0199 (2000) is not to the contrary. There, we found that a
member of the Gilmer Volunteer Fire Department was prohibited by common-law incompatibility
from simultaneously serving as a member of the Gilmer City Council. In that instance, however,
the city charter had designated the volunteer fire department as the “Fire Department for the City of
Gilmer.” Furthermore,

                [a] fire chief, elected by the members of the department, must be
                “approved or denied by the City Council.“. . . The fire chief is the
                chief administrative officer of the department and is fully responsible
                to the council for its administration and for enforcing the resolutions
                and ordinances of the city council. The chief, with the approval of
                the city manager, appoints and removes the “employees” of the
                department. Whereas the Hudson Volunteer Fire Department appears
                to have been a truly independent organization, the department in
                Gilmer is clearly under the control of the city, is housed on city
                property, and is led by a chief who must be approved by the city
                council.

Tex. Att’y Gen. Op. No. JC-0199 (2000) at 1 (citations omitted).

        Unlike the department in the Gilmer case, but like the department in Hudson, the Lohn
volunteer fire department is clearly not under the control of the Commissioners Court of McCulloch
County. We conclude that a county commissioner of McCulloch County is not precluded from
simultaneously serving as a member of the volunteer fire department of Lohn, a town located in that
county.
The Honorable Virginia K. Treadwell    - Page 3    (JC-038%




                                      SUMMARY

                        A county commissioner     of McCulloch      County is not
               prohibited from simultaneously serving as a member of the volunteer
               fire department of Lohn, a town located in that county.




                                             Attorney General of Texas



 ANDY TAYLOR
 First Assistant Attorney General

 SUSAN D. GUSKY
 Chair, Opinion Committee

 Rick Gilpin
 Assistant Attorney General - Opinion Committee
