                                  ATTORNEY GENERAL OF TEXAS
                                               GREG        ABBOTT




                                                February 22,2006



The Honorable Richard E. Glaser                            Opinion No. GA-0402
County and District Attorney, Fannin County
101 East Sam Rayburn Drive, Suite 301                      Re: Whether an elected constable is prohibited
Bonham, Texas 75418                                        from simultaneously serving as a full-time deputy
                                                           sheriff (RQ 0383-GA)

Dear Mr. Glaser:

       You ask whether an elected constable is prohibited from simultaneously                serving as a full-time
deputy sheriff.’

         Article XVI, section 40 of the Texas Constitution provides in relevant part that “[n]o person
shall hold or exercise at the same time, more than one civil office of emolument . . . .” TEX. CONST.
art. XVI, $ 40. The Texas Supreme Court has long held that “the determining factor which
distinguishes a public 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 of the control of others.” Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583
(Tex. 1955). A constable is an elected official and clearly holds his position largely independent of
the control of others. See TEX. CONST.art. V, 5 18(a) (constable shall be elected from each precinct).
A deputy sheriff, on the other hand, is not an officer because he “serves at the pleasure of the
sheriff.” TEX. LOC. GOV’T CODEANN. 0 85.003(c) (Vernon 1999). Thus, because a deputy sheriff
does not hold an office, he is not prohibited by article XVI, section 40 from simultaneously serving
as an elected constable.

          We must also consider the common-law doctrine of incompatibility, which has three aspects:
 self-appointment, self-employment, and conflicting loyalties. See Tex. Att’y Gen. Op. No. GA-0328
 (2005) at 1. The first two are not applicable here because neither a constable nor a deputy sheriff
 appoints or employs the other. It is the third aspect of incompatibility--conflicting loyalties-that
 is implicated by your inquiry. This doctrine was first promulgated by a Texas court in a 1927 case
wherein the court found the offices of school trustee and city alderman to be incompatible.          See
 Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S. W. 152, 153 (Tex. Comm’n App. 1927,
judgm’t adopted).


          ‘See Letter f?omHonorable Richard E. Glaser, County and District Attorney, Fannin County, to Honorable Greg
Abbott, Attorney General of Texas (Aug. 18, 2005) ( on file with the Opinion Committee, also available at
http://www.oag.state.tx.us)  [hereinafter Request Letter].
The Honorable Richard E. Glaser - Page 2            (GA-0402)




        The clear holding of Thomas is that in order for conflicting loyalties incompatibility to be
applicable to a particular situation, each position must constitute an “office.” See id. at 152-53; see
also Tex. Att’y Gen. Op. Nos. GA-0214 (2004) at 3-4; GA-0127 (2003) at 3. Because we have
determined that a deputy sheriff does not hold an office, he is not barred by conflicting loyalties
incompatibility from simultaneously holding the office of constable.

        We have found no statute that prohibits a sheriff from employing an elected constable such
as the sheriffs deputy, nor any statute that prohibits an elected constable from simultaneously
serving as a deputy sheriff. See generally TEX. LOC. GOV’T CODE ANN. $0 85.001-.023 (Vernon
1999 & Supp. 2005) (chapter 85 concerning sheriffs); id $5 86.001-.025 (chapter 86 concerning
constables).

         Neither the common-law doctrine of incompatibility nor article XVI, section 40, however,
reaches the practical difficulties involved in holding two positions, for example, the impossibility
of being in two places at once. See Tex. Att’y Gen. Op. Nos. GA-02 14 (2004), at 4; JM-8 19 (1987)
at 6; V-303 (1947) at 2. Moreover, as we observed in Attorney General Opinion GA-0214, an
individual peace officer may be subject to “rules, ordinances, or policies that limit additional
employments.” Tex. Att’y Gen. Op. No, GA-02 14 (2004) at 4. Accordingly, “a peace officer who
is considering a second employment must also consult such provisions for additional restrictions on
outside employment.” Id.

        We conclude that an elected constable is not prohibited by article XVI, section 40 of the
Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as
a deputy sheriff.
The Honorable Richard E. Glaser - Page 3          (GA-0402)




                                       SUMMARY

                      An elected constable is not prohibited by article XVI, section
               40 of the Texas Constitution or the common-law            doctrine of
               incompatibility from simultaneously serving as a deputy sheriff.

                                             Very truly yours,




                                             Attorney General of Texas



BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
