Honorable Wilson E. Speir                            Opinion No.    H- 7
Director,   Texas Department
of Public Safety                                     Re:   Whether persons holding
P. 0. Box 4087                                             commissions     as Special
Austin,   Texas  78773                                     Rangers pursuant to
                                                           Art. 4413(D), Subsection
                                                           (5) may also hold posi-~
                               ~~                          tions as certain other      ’
Dear   Cal.   Speir:.                                      State officials or officers?

       Article .4413(11)( 5) provides that the Public Safety Commission      has
authority to appoint Special Rangers under certain circumstances.            It
details the extent of their authority and limits their number.        It provides
that they: shall receive no compensation      from the State fortheir
s&vices.

      You have requested our opinion as to whether the following
State officers   or employees  could hold their job or office and, at the
same time,     serve as a Special Ranger:

                 (1)    An elected   judge of the State of Texas;

                 (2)    A State legislator;

                 (3)    An appointed member of the staff of an elected
                        member of the state legislature;

                 (4)    An elected member of the executive department              of
                        the government of the State of Texas.

        Your question requires that we consider three            separate    and
distinct limitations  upon the holding of dual offices:

                  (1)   The common-law     doctrine that one person        may not
                        hold two incompatible   offices;



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Honorable   Wilson   E.   Speir,   page 2.   (H-7)




              (2)    The prohibition of Article 2, Section 1 of the
                     Constitution of Texas (the Doctrine of Separation
                     of Powers) that one person “being of one” depart-
                     ment shall not exercise any power attached to
                     either of the others;

              (3)    Limitations on dual office holding imposed by
                     Sections 33 and 40 of Article 16 of the Constitution
                     of Texas.

      Without knowing a great deal more about the duties of the person
under consideration   for appointment as Special Ranger,    we cannot
advise whether those duties would be incompatible     at common law with
the duties of a Special Ranger.    You have called to our attention Attorney
General Opinion No. O-1263(1939)     m
                                     . which it was held that a person could
not hold the offices of deputy sheriff and Special Ranger at the same time
because the two were incompatible.     This is in accord with the common
law doctrine that one person may not hold two incompatible     offices.
Thomas v. Abernathy County Line ,Ind.- School Dist.,     290 S. W. 15:2
(Tex. Comm. App. (1927));   Pruitt v. Glen    Rose Ind. School     Dist. .No.   1,
126 Tex. 45, 84 S. W. 2d 1004 (1935);   17
                                        ’  Tex. Jur. 2d, Public    Officers,
Sec. 28, p. 42 and cases cited therein.

       Article 2, Section 1 of the Constitution of Texas,   after providing
that the powers of the government    shall be divided into legislative,
executive and judicial departments,    states:

                      ,1. . . and no person, or collection of persons,
              being of one of these departments,    shall exercise any
              power properly attached ,to either of the others except
              in the instances herein expressly  permitted. ”

       The Texas Rangers are a part of the Department of Public
Safety, an executive department.  Article 4413(l) et seq, Vernon’s
Texas Civil Statutes.

       Article 4413(11)(5) defines Special Rangers and limits their
powers.     It provides a maximum number to be appointed; that they
shall not have any connection with any ranger company or uniformed
unit of the Department    of Public Safety; that they shall be subject to




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Honorable   Wilson   E. Speir,   page 3,     (H-7)




the orders of the Commission       and the Governor;    that they shall not
have authority to enforce any laws except those designed to protect
life and property and are denied the authority to enforce any laws
regulating the use of state highways; that they shall receive no
compensation;    that they shall execute a bond.      These functions
involve the exercise     of a “power properly attached to” the executive
department and, therefore,       no person “being of one of” the other
departments,    i. e. the Legislature   or the judiciary,   may be appointed
a Special Ranger.      In City of Houston v. Stewart, -99 Tex. 67,87
S. W. 663 (1905) the court, in holding that there was no constitutional
prohibitiqn against conferring     certain additional executive powers
upon~ a city alderman,     said, as dictum:

                         “There is no constitutional    prohibition~against
                conferring power upon any officer except that the
                authority,vested  in the officers   of one department
                of the government   shall not be conferred upon those
             .~ of .another department.   . .,‘I (87 S. W. at ,665,)
          ~.
We interpret this section of the Constitution to meant that “being
of” one of the departments     includes more than just being one of
the officers  of that department,     and that an employee of one de-
partment is barred from assuming any position or office in either
of the .oth&two    departments    if he exercises  governmental  powers
in any d,epartment.

      We conclude,     therefore,   that an elected state ‘or county judge
and a state legislator    would be barred from appointment as a Special
Ranger by Article 2. Section 1 of the Constitution.        Likewise,   an
appointed member of the staff of a member of the Legislature,
“being of” the legislative    branch,   could not exercise   executive power
as a Special Ranger,     whether or not his legislative    position involved
the exerci~se of legislative   power.

        With reference  to the fourth category, i. e. “an elected member
of the executive department of the government      of the State of Texas, ‘I
it is possible that common law incompatibility     might apply although
this is a factual question upon which we can have no present’ opinion.
The separation of powers limitation of Article 2. Section 1 of the
Constitution would not apply and, barring some incompatibility,
eligibility for dual employment    would depend upon whether the provisions    of
Sections 33 and 40 of Article 16 of the Constitution,both     of which
were amepded in 1972, would.‘apply.

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Honorable    Wilson   E.   Speir,     page 4.       (H-7)




         As amended   Section       33 of Article      16 of the Constitution   of Texas
reads:

                       “The Accounting Officers     in this State shall
               neither draw or pay a warrant or check on funds of the
               State of Texas,  whether in the Treasury     or other-
               wise, to any person for salary or compensation       who
               holds at the same time more than one civil office
               of emolument,   in violation of Section 40. ”

       As amended,    therefore,   Section 33 is entirely dependent upon
a violation of Section 40.    Section 40, as amended, may be broken
into five separate sentences or phrases:

                         1. “No person shall hold or exercise           at the same
               time, more than one civil office of emolument,              except
               that of Justice of the Peace,         County Commissioner,
               Notary Public and Postmaster,            Officer of the National
               Guard, the National Guard Reserve,             and the Officers       ’
               Reserve     Corps of the United States and enlisted men of
               the National Guard, the National Guard Reserve,               and the
               Organized Reserves          of the United States, and retired
               officers of the United States Army,           Air Force,    Navy,
               Marine Corps,       and Coast Guard, and retired warrant
               officers,    and retired enlisted men of the United States
               Army,     Air Force,     Navy, Marine Corps,         and Coast
               Guard, and the officers and directors            of soil and water
               conservation     districts,     unless otherwise    specially
               provided herein.

                          2.  “Provided,    that nothing in this Constitution shall
                be construed to prohibit an officer or enlisted man of the
                National Guard, and the National Guard Reserve,            or an
                officer in the Officers Reserve       Corps of the United States,
                or an enlisted man in the Organized Reserves           of the United
                States, or retired officers of the United States Army,
                Air Force,     Navy, Marine Corps,       and Coast Guard, and
                retired warrant officers,       and retired enlisted men of
                the United States Army,       Air Force,    Navy, Marine Corps,      and
                Coast Guar~d, and officers of the State soil and water con-
                servation districts,     from holding at the same time any
                other office or position of honor, trust or profit, under
                this State or the United States,      or from voting eat any
                election,    general,  special or primary     in this State
                when otherwise qualified.
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Honorable    Wilson   E.   Speir,   page 5, (H-7)




                         3. “State employees     or other individuals who
                receive all or part of their compensation     either directly
                or indirect1.y from funds of the State of Texas and who
                are not State officers,    shall not be barred from serving
                as members     of the governing   bodies of school districts,
                cities, towns, or other local governmental       districts;
                provided,   however,    that such State employees    or other
                individuals shall receive no salary for serving as
                members    of such governing bodies.

                         4.  “It, is further provided, that a nonelective
                State officer may hold other nonelective      offices under the.
                State or the United States, if the other office is of benefit
                to the State of Texas or is required by the State or
                Feder.al law, land there is no conf’lict with the original
                office for which he receives., salary or compensation.


            .‘~ ~~        5.. “No member. of the Legislature of this State
                 may hold any other office or position of profit under
                 this State, or the United States, except as a notary
                 public if qualified by law. ”

       The first of these does not apply to the situation about which you
inquire because theoffice   of Special Ranger is not a “civil office of
emolument. ”
           I
       The second sentence is likewise inapplicable because you do not
ask about an officer or enlisted man in one of the services   or reserve
components nor~ about an officer of any of, the State soil and water
conseryaticn  districts.

       The third sentence~appl.ies to state employees   who seek positions
on local goyerning bodies,   not within the scope, of your question.

       The fourth sentence applies to non-elective   offices and, since
your question specifically inquires about an elected officer in the
executive department of the government:,    it does not apply.




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Honorable   Wilson   E.   Speir,   page 6,       (H-7)




       The fifth and last   sentence    applies      exclusively   to members    of the
Legislature.

       We find nothing, therefore,  in either Section 33 or Section 40 of
Article 16 of the Constitution to deny an elected member of the executive
department an appointment as a Special Ranger.

        Your letter requested our opinion as to whether certain             specified
officers  or employees   could be appointed as Special Rangers.                 Our
answers are:

              (1) An elected       judge could not;

              (2)    A state legislator      could.not;

              (3) An appointed member of the staff of an elected                 member
              of the State legislature could not;

               (4) An elected      member of the executive          department    of
               the government       could be appointed.

                               -SUMMARY-

                        The office of Special Ranger is an office
               in the executive branch of the government        and
               appointment’of    an elected judge or a state legis-
               lator to be a Special Ranger would violate Article
               2, Section 1 of the Constitution.     Designation   of
               an appointed member of the staff of an elected
               member of the Legislature      likewise would be
               viblative of Article 2. Section 1 of the Constitution.

                       An elected member of the executive depart-
               ment of the government-of’the    State of Texas may
               be appointed a Special Ranger provided there is no
               incompatibility  between the office of the appointee
               and the office of Special Ranger.




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Honorable   Wilson   E. Speir.   page   7..    (H-7)




                                                       Very   truly yours,




                                                       J0HN.L.    H&L
                                                       Attorney   General    of Texas

APPROVED:




DAVID M. KENDALL,         Chairman
Opinion Committ.ee




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