                                     The Attorney General of Texas
                                                          .
     JIM MAlTOX                                      July 11, 1986
     Attorney General



     Supreme Court Suildlng         Ronorable Lloyd CKI.SS                 Opinion No. JM-519
     P. 0. Box 12548
                                    Chairman
     Austin, TX. 78711. 2548
     51214752501                    Labor and Employm<!ntRelations         Re: Whether an individual may
     Telex 9101S74.1387                Committee                           serve as both constable and
     Telecopier 512/475-0288        Texas House of Representatives         member qf a school board .
                                    P. 0. Box 2910
     714 Jackson, Suite 700
                                    Austin, Texas   711769
     Dallas. TX. 75202.4506
     2141742-8944                   Dear Representative Criss:

                                         You ask whether an individual may serve concurrently as a member
     4S24 Alberta Ave.. Suite 180
     El Paso. TX. 799052793
                                    of a school board and as a constable, whether appointed or elected to
     915633CuS4                     the position of constable.

--                                       In answering questions about the holding of two offices by one
         ‘1 Texas. Suite 700        person, this office has generally considered the following issues:
      ..“sto”. TX. 77W2-3111
     713/223-5888
                                                 1. Whether this instance of dual office
                                              holding is prohibited by article XVI, section 40
     SO5 Broadway. Suite 312                  of the r,exas Constitution, which bars one person
     Lubbock. TX. 79401.3479                  from ho!.dling
                                                           two civil offices of emolument;
     8W47-5238

                                                 2. Whether it is prohibited by article II,
     4308 N. Tenth. Suite B                   section 1 of the Texas Constitution, which
     McAllen, TX. 7S5Ol-1885                  provider;for the separation of powers;
     5121682-4547
                                                 3. Whether    the  common law  doctrine of
     200 Main Plaza, Suite 400                incompatible offices prevents one person from
     San Antonio. TX. 782052797               holding both offices.
     512l2254191
                                         Article XVI, section 40, of the Texas Constitution provides in
     An Equal Opportunity/
                                    part:
     Affirmative Action Employer
                                              No person shall hold or exercise at the same
                                              time, more than one civil office of emolument,
                                              except. * . .

                                    Tex. Const. art. XVI, section 40. Section 23.19(e) of the Education
                                    Code provides that school trustees serve without compensation; thus,
                                    the office of school trustee is not a civil office of emolument.
                                    Attorney General Opinion V-834 (1949). Article XVI, section 40, of
                                    the Texas Constitut:iondoes not bar a school trustee from serving as a
                                    constable.


                                                                 p. 2382
Honorable Lloyd Criss - Pagl? 2    (JM-519)


                                                                         -



     Article II, section 1, of the Texas Constitution provides:

          The powers of the Government of the State of Texas
          shall be divided into three distinct departments,
          each of which shall be confided to a separate body
          of magistracy, to wit: Those which are Legislative
          to one; those whi.ch are Executive to another, and
          those which are Judicial to another; and no
          person, or collection of persons, being of one of
          these departmerks, shall exercise w          power
          properly attached to either of the others, except
          in the instances hmareinexpressly permitted.

     The case of Turner w. Trinity Independent School District Board
of Trustees, 700 S.W.2d 1 ?:ex. App. - Houston [14th Dist.] 1983, no
writ) is instructive on the application of this provision to cases of
dual office holding.     The -Turner V. Trinity Independent School
District case determined that a school trustee was not prohibited from
simultaneously holding the office of justice of the peace.          It
discussed the effect of article II, section 1, of the Texas
Constitution as follows:

          The policy behinqi Article 2, $1, is to prohibit
          one branch of government from interfering with
          functions consti,tutionally committed to other
          branches of government. See Ruiz V. State, 540
          S.W.2d 809, 812 (Tex. C1v.p~.    - Corpus Christ1
          1976, no writ). While we agree that a-Justice of
          the Peace is a rlember of the Judicia.1branch of
          government and a trustee of an independent school
          district probably is a member of the Executive
          branch, we find nothing to persuade us that
          Chandler's functi.onsas Justice of the Peace have
          interfered with or will interfere with his func-
          tions as a member of the Board.

700 S.W.2d at 2.

     A constable is also a member of the judicial branch. Tex. Const.
art. V, 118. We see no b.asis for concluding that an individual's
functions as constable wou1.d interfere with his functions as a member
of the school board. Nor do we believe that the individual's service
in an executive branch o:ffice of one political subdivision and a
iudicial branch office of another nolitical subdivision involves the
;xcessive concentration of power which article II. section 1, was
designed to prevent. %Q!?nerally     Coates V. Windham. 613 S.W.2d 572
(Tex. Civ. App. - Austin 158'1,no writ).

     The common law doctrine of incompatibility prevents one person
from holding two offices if the duties are inconsistent or in
conflict, or if one officme is subordinate to the other. Thomas v.



                                  p. 2383
         Honorable Lloyd Criss - Page 3    (JM-519)

     -



         Abernathy County Line Independent School District. 290 S.W. 152 (Tex.
         Comm'n App. 1927, judgmt. Ttdopted); State v. Mae,      51 S.W.2d 815
         (Tex. Civ. App. - .SanAntcnio 1932, nilit).      See Attorney General
         Opinions JM-203; JM-141 (198,4);JM-129 (1983); Letter Advisory No. 114
         (1975).

              The trustees of an independent school district "have the
         exclusive power to manage and govern the public free schools of the
         district." Educ. Code 123.26(b). A constable is a peace officer with
         the law enforcement powers and duties determined by the legislature.
         See, e.g., Code Grim. Proc. arts. 2.12-2.16; 14.01-14.06; 15.01,
         15.15-15.18. The Supreme Court of Missouri, in deciding that the
         office of deputy sheriff w,as not incompatible with that of school
         board member, stated as foll#ows:

                      At common law the only limit to the number of
                   offices one perscn might hold was that they should
                   be compatible ani. consistent. The incompatibility
                   does not consist in a physical inability of one
                   person to dischar,gethe duties of the two offices,
                   but there must b's some inconsistency in the func-
                   tions of the two, -- some conflict in the duties
--                 required of the officers, as where one has some
                   supervision of the others, is required to deal
                   with. control, 0:: assist him. . . . Sheriffs are
                   given power, and it is ma,de their duty, to preserve
                   the peace, arrest, and commit to jail all felons
                   and traitors, excfcuteall process, and attend upon
                   courts of record. The board of directors of the
                   St. Louis public school has charge, control, and
                   management of the public schools, and of all the
                   property appropriated to the use of the public
                   schools within said city. We are unable to dis-
                   cower the least incompatibility or inconsistency in
                   the public functions of these two offices, or where
                   they could by :?ossibility come in conflict or
                   antagonism, unless .the deputy sheriff should be
                   required to serve process upon a director as
                   such. We do' not think such a remote contingency
                   sufficient to create an incompatibility.         The
                   functions of the two offices should be inherently
                   inconsistent and repugnant. . . .

         State V. Bus, 36 S.W. 636, 639-40 (MO. 1896).

              A prior opinion of this office also found that the office of
         deputy sheriff is not incoapatible with the office of school trustee
         of a common school district. Attorney General Opinion O-3308 (1941)
         stated as follows:




                                          p. 2384
Honorable Lloyd Criss - Pagsz4 (JM-519)




         We have carefully considered the respective duties
         of a deputy sher:.ffand of a school trustee of a
         common school district and we have been unable to
         find where any of .theduties falling upon a holder
         of each respective office would necessarily be
         inconsistent with or incompatible with the duties
         of a person holding the other office. Neither do
         we find any corresponding duties of either of said
         offices which would necessarily unduly influence
         the duties imposed.by law upon the holder of the
         other office.

     The constable has many duties in common with the sheriff and
deputy sheriff. See Code Grim. Proc. arts. 2.12-2.16; 14.01-14.06;
15.01; 15.15-15.18. We believe that the quotations from Attorney
General Opinion O-3308 and the Supreme Court of Missourialso describe
the relationship between tie offices of constable and school trustee
under Texas law. The two offices are not incomnatible. and the duties
thereof may be performed by the same person. See generally Turner v.
                           District, 700 S.W.2d 1 (Tex. App. - Houston
                           ; State V. Martin, 51 S.W.2d 815 (Tex. Civ.
APP. - San Antonio 1932, no ,writ).
                                                                         --
     We conclude that an individual is not prevented from serving
concurrently as a school board member and a constable by article II,
section 1 or article WI, rrection40, of the Texas Constitution or by
the common law doctrine oi' incompatibility. We point out, however,
that constables are subject to article XVI, section 65 of the Texas
Constitution. Therefore, Lf a constable announces his candidacy or
becomes a candidate for the office of school trustee when his
unexpired term as constable exceeds one year, he thereby automatically
resigns the office of constable. Tex. Const. art. XVI, 540; see
Ramirez V. Flores, SOS S.W.2d 406 (Tex. Civ. App. - San Antonio 1973,
writ ref'd n.r.e.).

                            SUMMARY

             One person is not prohibited from concurrently
          holding the of!iices of constable and school
          trustee by article II, section 1 of the Texas
          Constitution, article XVI, section 40, of the
          Texas Constitution. or the common law doctrine of
          incompatibility.




                                          JIM     MATTOX
                                          Attorney General of Texas




                              p. 2385
       Honorable Lloyd Criss - Page 5     (JM-519)

rc-.



       JACK HIGHTOWER
       First Assistant Attorney General

       MARY KELLER
       Executive Assistant Attorney General

       RICK GILPIN
       Chairman, Opinion Committee

       Prepared by Susan L. Garrison
       Assistant Attorney General




                                        p. 2386
