DAN MORALES 

,4TT,~RS:LY ‘XSERAL 

QPffice of tfje ~ttornep d3eneral 

&Mate of Qexas 

August 19,1992 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002-1891 

Opinion No. DM-156 

Re: Whether article XVI, section 40 of 

the Texas Constitution or the commonlaw 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 CONSTITUTION OF THE STATE OF 

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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Honorable Mike Driscoll - Page 2 (m-156) 

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 SPECIAL DISTRIC'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. Graybar Elec. 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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Honorable Mike Driscoll - Page 3 (Lt+156) 

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 

‘We note that you appear to rely OIL Gotlegos V. 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, WC do 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 

dispatcher p&ion is not a evil office ef emolument. Slip op. at 1; Stipulation of Facts at 2, para 11. 

Third, the. judge in GclIrgoS did not state any basis for his dccisioa that the plaintiff, Gallegos, 

simukaacously could not hold the positions of fire &am dispatcher and Texas legislator. Hewever, in 

two Ielter opinions discus& the same set of facts before the court in Gollegos, this office considered 

whether the last seateace of article XVI, 0 40 of the Teaas Constitutioa would preclude Gallegos from 

simultanmusly holding both pas&ions. See Attoraey General Letter Opinions LO-9O-55A (1991); LG90-55 (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 article XVI. 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 

population Sreater than 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. TEXAS ALMWAC 1992-93 at 149. Subchapter G 

therefore applies to the city of Houston. 

3We understand “commandstaff position” to refer to a position in which the holder supervises 

and controls certain other personnel. 

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Honorable Mike Driscoll - Page 4 W-156) 

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 received job descriptions for 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. 

p. 824 
Honorable Mike Driscoll - Page 6 (CM-156) 

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 

p. 825