                          QPffice   of tfje ~ttornep       d3eneral
                                      &Mateof Qexas
DAN MORALES                            August 19,1992
 ,4TT,~RS:LY
        ‘XSERAL



     Honorable Mike Driscoll                    Opinion No. DM-156
     Harris County Attorney
     1001 Preston, Suite 634                   Re: Whether article XVI, section 40 of
     Houston, Texas 77002-1891                 the Texas Constitution or the common-
                                               law doctrine of incompatibility precludes
                                               a deputy constable from simultaneously
                                               holding a position as an assistant fire
                                               chief with the City of Houston Fire
                                               Department (RQ-290)

     Dear Mr. Driscoll:

            You have asked for our opinion as to whether, under article XVI, section 40
     of the Texas Constitution or the common-law doctrine of incompatibility, a deputy
     constable simultaneously may hold a position as an assistant fire chief with the City
     of Houston Fire Department. We conclude that neither article XVI, section 40 of
     the constitution nor the common-law doctrine of incompatibility precludes one
     person from simultaneously holding both positions.

             We first consider whether the Texas Cot&itution precludes one person from
     simultaneously holding positions as deputy constable of a county and assistant fire
     chief of the City of Houston Fire Department. Article XVI, section 40 of the Texas
     Constitution states: “No person shall hold or exercise at the same time, more than
     one civil office of emolument.” Section 40 applies only to persons who profit
     monetarily from their office. 2 D. BRADEN,THE CONSTITUTIONOF THE STATEOF
     TEXAS: fir4 ANNOTATED       m CoMpARAnvE        ANALysIs   777 (1977) (citing Ifwfa v.
     Stare, 77 S.W.2d 970 (1944)) (citation omitted); see also Attorney General opinion
     MW-450 (defining “emolument”). We understand that both positions about which
     you inquire, the deputy constable position and the assistant fire chief position, are
     salaried positions. Thus, both are positions “of emolument.” We proceed to
     consider whether both positions are “civil offices” for purposes of article XVI,
     section 40 of the constitution.



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        To determine whether a position is a “civil office”for purposes of article XVI,
section 40 of the constitution, we must apply the definition of “public officer” that
the Texas Supreme Court articulated in Aldine Independent School District v.
Srandlqt, 280 S.W.2d 578, 582-85 (Tex. 1955). According to the AMne court, a
public officer, unlike a public employee, exercises a sovereign function largely
independent of the control of others for the public benefit. Aldine Indep. School
Dirt. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (quoting Dunbar v. Brazotia
Counw, 224 S.W.2d 738, 740 (Tex. Civ. App.--Galveston 1949, writ refd)); see
Attorney General Opinions JM-499 at 4, JM-485 at l(l986); Letter Advisory No. 31
(1973) at 2. This distinction recognizes the essential elements of public office: first,
the officeholder’s authority to exercise governmental power for the benefit of the
public; and second, the officeholder’s independence from the control of other
governmental entities or officials.

        Pursuant to section 86.011(a) of the Local Government Code, a county
constable may appoint a deputy constable if the constable has received the approval
of the county commissioners court. See 35 D. BROOKS,TEXAS PRACTICE:COUNTY
AND SPECIALDISTRIC'r       LAW Peace officers and Jail 9 20.10, at 689 (1989). Once
approved, the proposed deputy constable must qualify for off& in th‘e same manner
as a deputy sheriff; that is, the deputy constable must take and subscribe the official
oath. Local Gov’t Code $5 85.003(b). 86.011(b). The appointing official may
terminate the deputy constable at will. Id. 0885.003(c), 86.011(b); D. BROOKS,
supra, at 688. Deputy constables may perform all acts and duties that the constable
is authorized to perform. Local Gov’t Code $0 85.003(d). 86.011(b); see B%on v.
State of Tera, 36 S.W.2d 733,734 (Ct. Crjm. App. 1931); D. BROOKS,supra, at 689.
The Texas Supreme Court has held, based on the statutory provisions creating and
empowering the position of deputy constable, that a deputy constable ‘is legally
vested with some portion of the government’s sovereign functions, which functions
the deputy constable is to exercise for the benefit of the public; accordingly, the
Supreme Court has concluded that the deputy constable of a county is a public
officer. Rich v. GraybarElec. Co., 84 S.W.2d 708,709 (Tex. 1935) (quoting Munrry v.
Srate of Tsras. 67 S.W.2d 274 (Ct. Crim. App. 1933)). Consequently, the position of
deputy constable is a civil office of emolument for purposes of article XVI, section
40 of the constitution.

        Whether the position of assistant fire chief with the City of Houston Fire
Department also is a civil office of emolument is a more difficult question. While
state-law creates and empowers the office of deputy constable, both state law and
city law provide for the position of assistant fire chief. Thus, we look to applicable


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sections of the state code as well as Houston’s city code to determine whether either
vests some portion of the government’s sovereign functions with an assistant fire
chief and requires the assistant fire chief to exercise those functions for the benefit
of the public largely independent of the control of others. If so, of course, the
position of assistant fire chief is a civil office of emolument.’

        We find relevant and applicable provisions of the state code’ in Local
Government Code chapter 143, subchapter G.* See Local Gov’t Code 5 143.101(a).
Section 143.102(a) authorizes the head of the fire department of such a municipality
to appoint, subject to confrmation by the municipality’s governing body (id.
B 143.102(k)), a person to a “command staff position3 at the rank of assistant chief.”
[Footnote added.] l-he head of the fire department must establish required
qualifications for persons appointed to the position of assistant chief, which
qualifications must include standards relating to management experience, education
and training background, special experience, and a performance evaluation. Id.
B 143.102(b). The municipality’s governing body must approve the qualifications by
a vote of two-thirds of the governing body’s members present and voting. Id. The


         ‘Wenote that you appearto relyOIL      GotlegosV.Ci@ofHouston,No.91-00592, slip op. @it.
Ct. of Harris County, 11th Judicial Diit. of Texas, Oct. 2& 1991), to support the contetttion that the
position of sssistaut fuc chief is a civil offke of emolument. For several reasons, WCdo not believe
Galkgos is dispositive here. Fmt, tbc plshttiff ia that case, G&egos, held a position as a tire abrat
dispatcher, not as an as&ant fk chief, with lhc City of Houstoa Fm Department. Slip op. at 1;
Stipulation of Facts st 2, para. 9. Second, the psrties iu Gulkgos stipulated that the tire alarm
dispatcherp&ion is not a evil officeef emolument.Slipop. at 1; Stipulationof Factsat 2, para 11.
Third, the.judge in GclIrgoSdid not state any basis for his dccisioathat the plaintiff,Gallegos,
simukaacously couldnot hold the positions of fire &am dispatcherand Texaslegislator.Hewever,in
twoIelteropinionsdiscus& the sameset of factsbeforethe courtin Gollegos, this office considered
whether the last seateace of articleXVI, 0 40 of the Teaas Constitutioawould preclude Gallegos from
simultanmusly holding both pas&ions. See Attoraey General Letter Opinions LO-9O-55A(1991); LG-
90-55 (1990). The last seatence of srticle XVI, 5 40 prohibits s member of the state legislsture from
holding ‘any other oflice or position of profit under this State, or the United States, except ss a notary
public if qusliied by law.” This portion of articleXVI. 3 40 does not pertain to the set of facts before
us here.

        *Local .Governmeat Code chapter 143, subchapter G applies to municipalities with a
populationSreaterthan 1.5 million. Local G&t Code 5 143.101(a). The 199293 Texas Alamnsc fists
the population of the city of Houston as 1,630,553. TEXASALMWAC 1992-93 at 149. SubchapterG
therefore applies to the city of Houston.

        3We understand“commandstaffposition”to refer to a position in which the holder supervises
and controls certain other personnel.




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head of the fire department may remove a person holding the rank of assistant fire
chief only for cause in compliance with the procedures for disciplinary action or
demotion articulated in subchapter D of chapter 143. Id. 0 143.102(g).

        Home rule cities may provide for the creation and operation of a fire
department within the city’s limits. Id. $342.011; see 52 TEX. JUR. 3d Municipalities
B 212, at 236 (1987); D. BROOKS,supra, Fire Protection 8 31.1, at 277. See generally
Local Gov’t Code ch. 143 (civil service provisions, pertaining to fire fighters and
peace officers, applicable to municipalities that have adopted them). You have
informed us that Houston is a home rule city. Section 34-53 of the City of Houston
Code provides the chief of the fire department with full control, supervisory powers,
and authority over all officers and employees in the department. Section 34-54
creates the assistant fire chief position:

             The positions of assistant chief of the fire department shall
         constitute the second level of command within the department,
         and the holders thereof shall assist the chief of the fire
         department in the administration of the department by
         performing such duties as he may lawfully direct.

Houston City Code 8 34-54.

        We note that, under the City of Houston Code, an assistant fire chief has
some special authority. Section 34-55, for example, provides a designated assistant
fire chief with special powers in the event of the chiefs absence or disability:

              The chief of the fire department shah, from time to time,
         designate one of the persons holding the rank of assistant chief
         of the fire department to discharge his duties during any time
         that the chief may be absent or otherwise unable to perform
         such duties. The person so designated shall be vested with the
         full authority of the office of chief of the fire department when
         acting for the chief in that capacity.

Id 9 34-55. Furthermore, section 34-58 of the City of Houston Code provides
assistant fire chiefs with police power at all fires:

             The chief of the fire department and each of his assistants
         and all officers thereof shall have the same police power at all


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Honorable Mike Driscoll - Page 5              (tN-156)




            fires as the police officers of the city have. Any person refusing
            to comply with any reasonable orders given by the chief of the
            fire department, or any official in the fire department, shall be
            deemed guilty of a misdemeanor.

Id g 34-58. Despite the special authority granted assistant fire chiefs, section 34-53
of the Houston City Code and job descriptions of all the assistant fire chief positions
with the City of Houston Fire Department expressly provide that the fire chief is to
directly control and supervise the assistant fire chiefs.4 See a.?ro id 034-54
(requiring each assistant fire chief to perform those duties that fire chief lawfully
directs). The fact that the fire chief directly supervises an assistant fire chiefs
actions requires us to conclude that an assistant fire chief does not exercise “any
sovereign function . . . largely independent of the control of others.” See Aldine
Indep. School Dkt. v. Srm2dley,280 S.Wjd at 583. Accordingly, we believe that the
position of assistant fire chief with the City of Houston Fire Department is not a
civil office of emolument, but rather an employment (see Attorney General Opinion
JM-1266 (1990) at 2). Therefore, article XVI. section 40 of the Texas Constitution
does not preclude one person from simultaneously serving as .deputy constable and
assistant fire chief in the City of Houston Fire Department.

        We next consider whether the common-law doctrine of incompatibility
prohibits one person from simultaneously holding both positions. The common-law
doctrine of incompatiiility prevents a person from holding two of&es if one office
might impose its policies on the other or subject it to control in some other way.
Attorney General Opinion DM-55 (1991) at 1. As we have concluded that the
assistant fire chief position with the City of Houston Fire Department is not an
office but rather an employment, the common-law doctrine of incompatibility does
not preclude a deputy constable from also serving as assistant fire chief. See
Attorney General Opinion N-1266 at 4.




       ‘We receivedjob descriptionsfor the following assistant tire chief positions with the City of
Houston Fue Department: Assistant Fire Chief/Central Command;Assistant Fire Chief/Emergency
Medical Services;Assistant Fire Chief/Operations;and Assistant Fire Chicf/Ouadrant.



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                                   SUMMARY

              The position of deputy constable of a county is a civil office
          of emolument. However. the position of assistant fire chief in
          the City of Houston Fire Department is not a civil office of
          emolument. Thus, neither article XVI, section 40 of the Texas
          Constitution nor the common-lath doctrine of incompatibility
          precludes one person from simultaneously serving as deputy
          constable for a county and assistant fire chief for the City of
          Houston Fire Department.




                                                 DAN      MORALES
                                                 Attorney General of Texas

WJLL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHJCKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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