DAN MORALES

,4TT,~RS:LY ‘XSERAL 

### QPffice of tfje ~ttornep d3eneral



## &Mate of Qexas August 19,1992

Honorable Mike Driscoll Harris County Attorney 1001Preston, 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 ofHouston Fire Department. Article XVI, section 40 of the Texas Constitution states: “Noperson 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

OFTHE 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.

p. 820Honorable Mike Driscoll - Page 2 (m-156)

To determine whether a position is a “civiloffice”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 ofpublic 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 ifthe constable has received the approval ofthe county commissioners court. See 35 D. BROOKS, TEXASPRACTICE:COUNTY AND SPECIAL

DISTRIC'r

LAW Peace officers and Jail 920.10, at 689 (1989). Once approved, the proposed deputy constable must qualify for off& in th‘esame 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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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 ofemolument.’

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. B143.102(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 notethatyouappear

torelyOIL Gotlegos V. Ci@ ofHouston,

No.91-00592,slip op. @it. Ct. of HarrisCounty,11thJudicialDiit. of Texas, Oct. 2& 1991), to supportthe contetttionthat the position of sssistaut fuc chief is a civiloffke of emolument. For severalreasons,WC do not believe Galkgos is dispositivehere. Fmt, tbc plshttiffia that case, G&egos, held a position as a tire abrat dispatcher,not as an as&ant fk chief, with lhc Cityof 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 isnotaeviloffice

efemolument.

Slip op.at 1;Stipulation

ofFactsat2,para 11. Third,the. judgein GclIrgoS

did not state anybasisfor his dccisioa that the plaintiff,

Gallegos, simukaacously

could not hold the positionsof fire &am dispatcher andTexas legislator. Hewever, in two Ielteropinions

discus& thesame

setoffacts before thecourtin Gollegos, this office considered whetherthe lastseateace of articleXVI, 040 of the TeaasConstitutioawould precludeGallegosfrom simultanmuslyholdingboth pas&ions.SeeAttoraeyGeneralLetterOpinions LO-9O-55A (1991);LG90-55 (1990). The last seatence of srticleXVI, 540 prohibitss member of the state legislsturefrom holding‘anyotheroflice or positionof profitunderthisState,or the United States,exceptss a notary publicifqusliied by law.” This portionof articleXVI. 340 does not pertainto the set of factsbefore
us here.
*Local .Governmeat Code chapter 143, subchapter G applies to municipalities with a population Sreater than1.5million. LocalG&t Code 5 143.101(a). The 199293 TexasAlamnsc fists the populationof the cityof Houston as 1,630,553. TEXAS **ALMWAC** 1992-93at 149. Subchapter G thereforeappliesto thecityofHouston.

3We understand“commandstaff position” to referto a positionin which the holdersupervises andcontrolscertainotherpersonnel.

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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’slimits. Id. $342.011; see 52 TEX.JUR.3d Municipalities B212, at 236 (1987); D. BROOKS, supra, Fire Protection831.1, 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 chiefposition:

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 ofthe 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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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 andjob descriptions of all the assistant fire chiefpositions 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 ofHouston 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 incompatiiilityprevents 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 descriptionsfor the following assistant tire chief positionswith the Cityof Houston Fue Department: AssistantFire Chief/CentralCommand;AssistantFire Chief/Emergency MedicalServices;

AssistantFireChief/Operations;andAssistantFireChicf/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 ofTexas

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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