    OFFICE   OF THE   ATTORNE”   GENERAL.   STATE   OF TEXAS

    JOHN       CORNYN




                                                       December 8, 1999



The Honorable Joe Warner Bell                                  Opinion No. JC-0148
Trinity County Attorney
P.O. Box 979                                                   Re: Whether a deputy constable is required to
Groveton, Texas 75845                                          reside in the precinct for which he was appointed
                                                               (RQ-0091-JC)


Dear Mr. Bell:

        You have requested our opinion as to whether a deputy constable is required to reside in the
precinct for which he was appointed.    We conclude that no statute or constitutional provision
compels a deputy constable to reside within the jurisdiction he serves.

         The Election Code establishes a residency requirement for those who hold elective offices,
see TEX. ELEC. CODE ANN. 9 141,001(a)(5) (V emon 1986), but it does not impose a residency
qualification for any position other than an elective office. Tex. Att’y Gen. Op. No. M-308 (1968)
at 4. No statute requires a deputy constable to reside within his precinct.

         Article XVI, section 14, of the Texas Constitution,              provides:

                      All civil officers shall reside within the State; and all district or
                      county officers within their districts or counties, and shall keep their
                      offices at such places as may be required by law; and failure to
                      comply with this condition shall vacate the office so held.

A deputy constable is a peace officer. TEX. CODE GRIM. PROC. ANN. art. 2.12(2) (Vernon Supp.
1999). Since 1993, this office has said that a peace officer does not as a matter of law hold a civil
office of emolument for purposes of article XVI, section 40, of the Texas Constitution. Tex. Att’y
Gen. Op. No. DM-212 (1993) at 6. Furthermore, under ordinary circumstances, apeace officer such
as a deputy constable performs his duties under the direction and control of others and hence, does
not hold an office. Tex. Att’y Gen. LO-95-048, at l-2; LO-93-027, at 1. We believe it is reasonable
to conclude that the term “civil office” for purposes of article XVI, section 14, should be construed
in a manner similar to that of article XVI, section 40, and that, as a result, the residency requirement
of article XVI, section 14, does not apply to a deputy constable.

         In Powell v. State, 898 S.W.2d 821 (Tex. Grim. App. 1994), the defendant argued that an
assistant district attorney who was appointed as a special prosecutor should have been disqualified
The Honorable Joe Warner Bell - Page 2            (X-0148)




because, inter nlia, he did not reside within the county or district in which he prosecuted   the case.
The court held:

                        An assistant district attorney acts subject to the control and
               supervision of the district attorney. In our view, an assistant district
               attorney is not a public officer, but rather a public employee.
               Therefore, the constitutional      provisions cited by appellant are
               inapplicable to the facts of the case.

Id. at 824. In our opinion, a deputy constable    likewise “acts subject to the control and supervision
of the” constable, and “is not a public officer, but rather a public employee.” Consequently, article
XVI, section 14, does not impose a residency qualification on an individual who holds the position
of deputy constable. We conclude that a deputy constable is not required to reside in the precinct
for which he was appointed.

                                         SUMMARY


                       A deputy constable is not required to reside in the precinct for
                which he was appointed.




                                                          CORNYN
                                                 Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Rick Gilpin
 Assistant Attorney General - Opinion Committee
