                               ATTORNEY     OF TEXAS
                                      GENERAL
                                             GREG        A B B O T T




                                                  April 17, 2007


The Honorable Rob Baiamonte                              Opinion No. GA-0540
Goliad County Attorney
Post Office Box 24                                       Re: Whether an individual may simultaneously
Goliad, Texas 77963                                      serve as a constable in Goliad County and as a
                                                         member of the board of directors of the Goliad
                                                         County Groundwater Conservation District
                                                         (RQ-0548-GA)

Dear Mr. Baiamonte:

        You ask whether an individual may simultaneously serve as a constable in Goliad County
and as a member of the board of directors of the Goliad County Groundwater Conservation District
(the "district").'

        The district was created by a special act of the Legislature, pursuant to the authority of article
XVI, section 59 ofthe Texas Constitution. See Act of May 25,2001,77th Leg., R.S., ch. 1359,2001
Tex. Gen. Laws 3360,3360-63. "The boundaries of the district are coextensive with the boundaries
of Goliad County, Texas." Id. 5 3, at 3360. "The district is governed by a board of seven directors."
Id. 8 lO(a), at 3361. "If a vacancy occurs on the board, the remaining board members shall appoint
a person to fill the vacancy." Id. 8 1l(b), at 3362. You indicate that there is at present a vacancy on
the board and that the board is considering the appointment of a Goliad County constable. See
Request Letter, supra note 1.

         You first ask whether such appointment would contravene article XVI, section 40 of the
Texas Constitution, which provides that "[nlo person shall hold or exercise at the same time, more
than one civil office of emolument." TEX.CONST.art. XVI, 5 40(a); Request Letter, supra note 1.
By definition, a member of a governing board holds an "office." See Aldine Indep. Sch. Dist. v.
Standley, 280 S.W.2d 578, 583 (Tex. 1955) ("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"). An "emolument" has been described as "a pecuniary profit, gain or advantage." Irwin v.


         'Letter from Honorable Rob Baiamonte, Goliad County Attomey, to Honorable Greg Abbott, Attorney General
of Texas (Oct. 23,2006) (on file with the Opinion Committee, also available at http:/lwww.oag.state.tx.us) [hereinafter
Request Letter].
The Honorable Rob Baiamonte - Page 2           (GA-0540)



State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944). Although 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-0032 (2003) at 2.

       Section 5 of the district's enabling legislation provides:

                       Except as otherwise provided by this Act, the district has all
               of the rights, powers, privileges, authority, functions, and duties
               provided by the general law of this state, including Chapter 36, Water
               Code, applicable to groundwater conservation districts created under
               Section 59, Article XVI, Texas Constitution. This Act prevails over
               any provision of general law that is in conflict with or inconsistent
               with this Act.

Act of May 25, 2001, 77th Leg., R.S., ch. 1359, 5 5(a), 2001 Tex. Gen. Laws 3360, 3360. No
provision of the district's enabling legislation makes any reference to compensation for district
directors. However, a provision of chapter 36 of the Water Code does so:

                       A director [of a groundwater conservation district] is entitled
               to receive fees of office of not more than $150 a day for each day the
               director actually spends performing the duties of a director. The fees
               of office may not exceed $9,000 a year.

TEX.WATERCODEANN. 5 36.060(a) (Vernon Supp. 2006). The compensation is not limited to
reimbursement for expenses. See id. 5 36.060(a)-(b).

        "[Tlhe right to the compensation attached to a public office is an incident to the title to the
office." Markwell v. Galveston County, 186 S.W.2d 273,277 (Tex. Civ. App.-Galveston 1945,
writ ref d). The fact that the officer may decline the compensation, or accept less than the full
amount, is irrelevant. See Broom v. Tyler County Comm 'rs Court, 560 S.W.2d 435,437 (Tex. Civ.
App.-Beaumont 1977, no writ). Thus, a district director holds an "office of emolument."

       A constable also holds an "office of emolument." A constable is a "precinct officer."
TEX. LOC. GOV'TCODEANN. 5 154.001 (Vernon 1999). The Texas Constitution requires a
commissioners court to compensate "justices ofthe peace, constables, deputy constables and precinct
law enforcement officers on a salary basis." TEX.CONST.art. XVI, 5 61(b).

        We conclude that an individual may not, under article XVI, section 40(a) of the Texas
Constitution, simultaneously serve as both a Goliad County constable and as a member of the board
of directors of the district. Accordingly, we need not consider your question under the common-law
doctrine of incompatibility.
The Honorable Rob Baiamonte - Page 3        (GA-0540)



                                     S U M M A R Y

                     An individual is barred by article XVI, section 40(a) of the
              Texas Constitution from simultaneously serving as both a Goliad
              County constable and as a member of the board of directors of the
              Goliad County Groundwater Conservation District.




                                            ~ t t o w ~ e n e rofa Texas
                                                                   l


KENT C. SULLIVAN
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
