                                       GREG
                                             CD
                             ATTORNEY GENERAL OF TEXAS
                                                  ABBOTT



                                            January 2, 2014



The Honorable R. Lowell Thompson                  Opinion No. GA-1036
Criminal District Attorney
Navarro County Courthouse                         Re: Whether Texas Constitution article XVI,
300 West 3rd Avenue, Suite 203                    section 40 prohibits a constable from serving
Corsicana, Texas 75110                            as a commissioner of an emergency services
                                                  district (RQ-1137-GA)

Dear Mr. Thompson:

        You ask whether Texas Constitution article XVI, section 40 prohibits a Navarro County
constable from serving as a commissioner of an emergency services district ("ESD"). 1 Article
XVI, section 40 provides that "[n]o person shall hold or exercise at the same time, more than one
civil office of emolument." TEX. CONST. art. XVI, § 40(a). The constitutional dual office-
holding prohibition applies if both positions (1) qualify as "civil offices," and (2) are entitled to
an "emolument." Id This office has previously determined that a constable holds a civil office
of emolument, and your request letter does not question this conclusion. Tex. Att'y Gen. Op.
No. GA-0540 (2007) at 2; see also TEX. Loc. Gov'T CODE ANN. § 154.001 (West 2008)
(defining a constable as a "precinct officer"); TEX. CONST. art. XVI, § 61(b) (mandating that
constables be paid on a salary basis). Instead, you question whether the position of ESD
commissioner is also an office of emolument subject to article XVI, section 40. See Request
Letter at 2.

        To address your question, we first examine whether an ESD commissioner is an "officer"
for purposes of article XVI, section 40. The determinative factor distinguishing an ' officer '
from an employee is "whether any sovereign function of the government is conferred upon the
individual to be exercised by him for the benefit of the public largely independent ofthe contro l
of others." A/dine Indep. Sch. Dist. v. Standley 280 S.W.2d 578 583 (Tex. 1955). This office
has previously determined that ESD commissioners meet the A/dine test and are thus public
officers. See Tex. Att'y Gen. Op. No. DM-114 (1992) at 5 (noting the various governmental
powers conferred upon an ESD board to be exercised for the benefit of the public largely

        1
         See Letter from Honorable R. Lowell Thompson, Navarro Cnty. Crim. Dist. Att'y, to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (July 23, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable R. Lowell Thompson - Page 2                   (GA-1036)



independent of the control of others); see also, e.g., TEX. HEALTH & SAFETY CODE ANN.
§§ 775.031(a) (West Supp. 2013) (authorizing a district to acquire and sell real and personal
property; appoint officers, agents, and employees; sue and be sued; impose and collect taxes;
exercise certain specific powers relevant to emergency services; enter into contracts; borrow
money; and perform other necessary acts), 775.034(a) (providing that commissioners serve as the
district's governing body).

        Next we determine whether an ESD commissioner holds an office of "emolument." An
emolument is "a pecuniary profit, gain or advantage." State ex rei. Hill v. Pirtle, 887 S.W.2d
921, 931 (Tex. Crim. App. 1994). While the reimbursement of actual expenses does not
constitute an emolument, any amount received in excess of actual expenses is an emolument.
Tex. Att'y Gen. Op. No. GA-0540 (2007) at 2. Likewise, an amount received as a flat payment
per meeting or a fixed per diem allowance is also an emolument. Tex. Att'y Gen. Op. No. GA-
0032 (2003) at 2. An ESD commissioner "is entitled to receive compensation of not more than
$50 per day for each day the commissioner actually spends performing the duties of a
commissioner" up to a maximum amount, and additionally "may be reimbursed for reasonable
and necessary expenses incurred in performing official duties." TEX. HEALTH & SAFETY CODE
ANN. § 775.038(a) (West 2010). In lieu of this arrangement, "a commissioner may elect to
receive per diem compensation of $50 for each day the commissioner actually spends performing
the duties of a commissioner" up to a maximum amourit, although by doing so, a commissioner
forfeits any reimbursement for reasonable and necessary expenses. /d. § 775.038(b). Under
either scenario, an ESD commissioner receives compensation for his or her services and thus
holds an office of emolument?

       Because a constable also holds a civil office of emolument, article XVI, section 40 of the
Texas Constitution prohibits a person from simultaneously serving as a constable and a
commissioner of an emergency services district. Because we conclude that article XVI, section
40 prohibits the dual service about which you ask, we need not consider your question under the
common-law doctrine of incompatibility. See Request Letter at 2 (referencing the common-law
standard of incompatibility).




        2
          You express concern that the creation of an ESD by virtue of an election and the fact that vacancies on the
ESD board are filled by appointment of the commissioners court may affect whether a Navarro County ESD
commissioner holds a civil office of emolument. Request Letter at 2. However, neither of these facts alters the
sovereign functions of government conferred by statute on ESD commissioners or their right to compensation.
The Honorable R. Lowell Thompson - Page 3       (GA-l 036)



                                    SUMMARY

                    Article XVI, section 40 of the Texas Constitution prohibits
              a person from simultaneously serving as a constable and a
              commissioner of an emergency services district.




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee
