Municipal Corner

Neither the separation of powers provision of article II, section 1 of the Constitution, nor the dual-officeholding prohibition in article XVI, section 40, nor the common-law incompatibility doctrine preclude a deputy sheriff from simultaneously serving as a city councilmember. Tex. Att’y Gen. Op. KP-0352 (2021).

The Honorable Stephen L. Mitchell, County Attorney for Culberson County, requested an opinion by the Attorney General (“AG”) to determine whether a deputy sheriff may simultaneously serve as an elected alderman of a Type-A general-law city. The AG opined that neither the separation of powers provision of article II, section 1 of the Constitution, nor the dual-officeholding prohibition in article XVI, section 40, nor the common-law incompatibility doctrine preclude a deputy sheriff from simultaneously serving as a city councilmember.

The AG first discusses the separation of powers provision, referencing its previous Letter Advisory 112 that concluded the separation of powers doctrine of article II, section 1 of the Texas Constitution precludes one person from simultaneously serving as deputy sheriff and city councilmember. Tex. Att’y Gen. LA-112 (1975) at 2. However, the AG cites its subsequent opinions calling the letter advisory into question, in part because “the language of article II, section 1 might be construed as applying only to state level offices, and not to offices of political subdivisions.” Tex. Att’y Gen. Op. No. JM—213 (1984) at 4. The AG notes that the Supreme Court has since resolved the question, holding that the separation of powers doctrine in article II, section 1 of the Texas Constitution “only guarantees the separation of the state legislative, executive, and judicial branches of government.” City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000). The AG thus concludes that article II, section 1 of the Constitution does not apply to local government and does not prevent a deputy sheriff from simultaneously serving as a member of a city council.

The AG next evaluates the dual-officeholding prohibition of article XVI, section 40 of the Texas Constitution, which provides in pertinent 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(a). The AG cites precedent from the Texas Court of Criminal Appeals, wherein the Court held the distinguishing factor of a public “office” subject to article XVI, section 40, is whether the person exercises a sovereign function of the government “largely independent of the control of others.” State ex. rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). The AG then notes the Local Government Code, which provides that “a deputy sheriff acts at the direction and pleasure of the sheriff.” TEX. LOC. GOV’T CODE § 85.003(c). Based on this and a handful of its previous opinions, the AG explains that a deputy sheriff does not hold a public office for purposes of article XVI, section 40 because the deputy does not exercise a sovereign function largely independent of the control of others. See Tex. Att’y Gen. Op. Nos. KP-0189 (2018) at 2, GA-0470 (2006) at 4, GA-0402 (2006) at 1. Accordingly, and consistent with its previous opinions, the AG concludes article XVI, section 40 does not preclude a person from simultaneously holding the positions of deputy sheriff and city councilmember. Tex. Att’y Gen. Op. No. KP-0189 (2018) at 2.

The AG lastly cautions as to the potential applicability of the common-law incompatibility doctrine, which prevents one person from simultaneously holding two public offices with inconsistent or conflicting duties. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928); Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App. 1927, judgm’t adopted). However, similar to the constitutional prohibition on dual officeholding, the AG explains that the common-law doctrine of incompatibility only prevents a person from holding two positions when each of those positions actually constitutes an office. See Thomas, 290 S.W. at 152–53. Taking this and relying again on its previous opinions, the AG concludes the common-law doctrine of incompatibility does not apply because a deputy sheriff is not considered to hold an office. See Tex. Att’y Gen. Op. Nos. KP-0189 (2018) at 2; GA-0470 (2006) at 4, GA-0402 (2006) at 1.

This opinion provides helpful guidance to municipalities regarding the extent to which one person may simultaneously serve in two or more governmental positions. The opinion clarifies that article II, section 1 of the Texas Constitution does not apply to local government and the prohibitions from article XVI, section 40 and the common-law incompatibility doctrine only apply to an “office,” meaning the position in question exercises a sovereign function largely independent of the control of others.

“Municipal Corner” is prepared by Reid Barnes. Reid is an Associate in the Firm’s Energy and Utility Practice Group. If you would like additional information or have questions related to these or other matters, please contact Reid at 512.322.5811 or rbarnes@lglawfirm.com.

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