Honorable Wilson E. Speir Opinion No. H- 7 

Director, Texas Department 

of Public Safety Re: Whether persons holding 

P. 0. Box 4087 commissions as Special 

Austin, Texas 78773 Rangers pursuant to 

Art. 4413(D), Subsection 

(5) may also hold posi-~ 

~~ tions as certain other ’ 

Dear Cal. Speir:. State officials or officers? 

Article .4413(11)( 5) provides that the Public Safety Commission has 

authority to appoint Special Rangers under certain circumstances. It 

details the extent of their authority and limits their number. It provides 

that they: shall receive no compensation from the State fortheir 

s&vices. 

You have requested our opinion as to whether the following 

State officers or employees could hold their job or office and, at the 

same time, serve as a Special Ranger: 

(1) An elected judge of the State of Texas; 

(2) A State legislator; 

(3) An appointed member of the staff of an elected 

member of the state legislature; 

(4) An elected member of the executive department of 

the government of the State of Texas. 

Your question requires that we consider three separate and 

distinct limitations upon the holding of dual offices: 

(1) The common-law doctrine that one person may not 

hold two incompatible offices; 

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Honorable Wilson E. Speir, page 2. (H-7) 

(2) The prohibition of Article 2, Section 1 of the 

Constitution of Texas (the Doctrine of Separation 

of Powers) that one person “being of one” department shall not exercise any power attached to 

either of the others; 

(3) Limitations on dual office holding imposed by 

Sections 33 and 40 of Article 16 of the Constitution 

of Texas. 

Without knowing a great deal more about the duties of the person 

under consideration for appointment as Special Ranger, we cannot 

advise whether those duties would be incompatible at common law with 

the duties of a Special Ranger. You have called to our attention Attorney 

General Opinion No. O-1263(1939) m . which it was held that a person could 

not hold the offices of deputy sheriff and Special Ranger at the same time 

because the two were incompatible. This is in accord with the common 

law doctrine that one person may not hold two incompatible offices. 

Thomas v. Abernathy County Line ,Ind.- School Dist., 290 S. W. 15: 2 

(Tex. Comm. App. (1927)); 

126 Tex. 45, 84 S. W. 2d 1004 (1935); ’ 

Sec. 28, p. 42 and cases cited therein. 

Pruitt v. Glen Rose Ind. School Dist. .No. 1, 

17 Tex. Jur. 2d, Public Officers, 

Article 2, Section 1 of the Constitution of Texas, after providing 

that the powers of the government shall be divided into legislative, 

executive and judicial departments, states: 

,1 

. . . and no person, or collection of persons, 

being of one of these departments, shall exercise any 

power properly attached ,to either of the others except 

in the instances herein expressly permitted. ” 

The Texas Rangers are a part of the Department of Public 

Safety, an executive department. Article 4413(l) et seq, Vernon’s 

Texas Civil Statutes. 

Article 4413(11)(5) defines Special Rangers and limits their 

powers. It provides a maximum number to be appointed; that they 

shall not have any connection with any ranger company or uniformed 

unit of the Department of Public Safety; that they shall be subject to 

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Honorable Wilson E. Speir, page 3, (H-7) 

the orders of the Commission and the Governor; that they shall not 

have authority to enforce any laws except those designed to protect 

life and property and are denied the authority to enforce any laws 

regulating the use of state highways; that they shall receive no 

compensation; that they shall execute a bond. These functions 

involve the exercise of a “power properly attached to” the executive 

department and, therefore, no person “being of one of” the other 

departments, i. e. the Legislature or the judiciary, may be appointed 

a Special Ranger. In City of Houston v. Stewart, -99 Tex. 67,87 

S. W. 663 (1905) the court, in holding that there was no constitutional 

prohibitiqn against conferring certain additional executive powers 

upon~ a city alderman, said, as dictum: 

“There is no constitutional prohibition~against 

conferring power upon any officer except that the 

authority,vested in the officers of one department 

of the government shall not be conferred upon those 

.~ of .another department. . .,‘I (87 S. W. at ,665,) 

~. 

We interpret this section of the Constitution to meant that “being 

of” one of the departments includes more than just being one of 

the officers of that department, and that an employee of one department is barred from assuming any position or office in either 

of the .oth&two departments if he exercises governmental powers 

in any d,epartment. 

We conclude, therefore, that an elected state ‘or county judge 

and a state legislator would be barred from appointment as a Special 

Ranger by Article 2. Section 1 of the Constitution. Likewise, an 

appointed member of the staff of a member of the Legislature, 

“being of” the legislative branch, could not exercise executive power 

as a Special Ranger, whether or not his legislative position involved 

the exerci~se of legislative power. 

With reference to the fourth category, i. e. “an elected member 

of the executive department of the government of the State of Texas, ‘I 

it is possible that common law incompatibility might apply although 

this is a factual question upon which we can have no present’ opinion. 

The separation of powers limitation of Article 2. Section 1 of the 

Constitution would not apply and, barring some incompatibility, 

eligibility for dual employment would depend upon whether the provisions of 

Sections 33 and 40 of Article 16 of the Constitution,both of which 

were amepded in 1972, would.‘apply. 

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Honorable Wilson E. Speir, page 4. (H-7) 

As amended Section 33 of Article 16 of the Constitution of Texas 

reads: 

“The Accounting Officers in this State shall 

neither draw or pay a warrant or check on funds of the 

State of Texas, whether in the Treasury or otherwise, to any person for salary or compensation who 

holds at the same time more than one civil office 

of emolument, in violation of Section 40. ” 

As amended, therefore, Section 33 is entirely dependent upon 

a violation of Section 40. Section 40, as amended, may be broken 

into five separate sentences or phrases: 

1. “No person shall hold or exercise at the same 

time, more than one civil office of emolument, except 

that of Justice of the Peace, County Commissioner, 

Notary Public and Postmaster, Officer of the National 

Guard, the National Guard Reserve, and the Officers ’ 

Reserve Corps of the United States and enlisted men of 

the National Guard, the National Guard Reserve, and the 

Organized Reserves of the United States, and retired 

officers of the United States Army, Air Force, Navy, 

Marine Corps, and Coast Guard, and retired warrant 

officers, and retired enlisted men of the United States 

Army, Air Force, Navy, Marine Corps, and Coast 

Guard, and the officers and directors of soil and water 

conservation districts, unless otherwise specially 

provided herein. 

2. “Provided, that nothing in this Constitution shall 

be construed to prohibit an officer or enlisted man of the 

National Guard, and the National Guard Reserve, or an 

officer in the Officers Reserve Corps of the United States, 

or an enlisted man in the Organized Reserves of the United 

States, or retired officers of the United States Army, 

Air Force, Navy, Marine Corps, and Coast Guard, and 

retired warrant officers, and retired enlisted men of 

the United States Army, Air Force, Navy, Marine Corps, and 

Coast Guar~d, and officers of the State soil and water conservation districts, from holding at the same time any 

other office or position of honor, trust or profit, under 

this State or the United States, or from voting eat any 

election, general, special or primary in this State 

when otherwise qualified. 

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Honorable Wilson E. Speir, page 5, (H-7) 

3. “State employees or other individuals who 

receive all or part of their compensation either directly 

or indirect1.y from funds of the State of Texas and who 

are not State officers, shall not be barred from serving 

as members of the governing bodies of school districts, 

cities, towns, or other local governmental districts; 

provided, however, that such State employees or other 

individuals shall receive no salary for serving as 

members of such governing bodies. 

4. “It, is further provided, that a nonelective 

State officer may hold other nonelective offices under the. 

State or the United States, if the other office is of benefit 

to the State of Texas or is required by the State or 

Feder.al law, land there is no conf’lict with the original 

office for which he receives., salary or compensation. 

.‘~ ~~ 5 . . “No member. of the Legislature of this State 

may hold any other office or position of profit under 

this State, or the United States, except as a notary 

public if qualified by law. ” 

The first of these does not apply to the situation about which you 

inquire because theoffice of Special Ranger is not a “civil office of 

emolument. ” 

I 

The second sentence is likewise inapplicable because you do not 

ask about an officer or enlisted man in one of the services or reserve 

components nor~ about an officer of any of, the State soil and water 

conseryaticn districts. 

The third sentence~appl.ies to state employees who seek positions 

on local goyerning bodies, not within the scope, of your question. 

The fourth sentence applies to non-elective offices and, since 

your question specifically inquires about an elected officer in the 

executive department of the government:, it does not apply. 

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Honorable Wilson E. Speir, page 6, (H-7) 

The fifth and last sentence applies exclusively to members of the 

Legislature. 

We find nothing, therefore, in either Section 33 or Section 40 of 

Article 16 of the Constitution to deny an elected member of the executive 

department an appointment as a Special Ranger. 

Your letter requested our opinion as to whether certain specified 

officers or employees could be appointed as Special Rangers. Our 

answers are: 

(1) An elected judge could not; 

(2) A state legislator could.not; 

(3) An appointed member of the staff of an elected member 

of the State legislature could not; 

(4) An elected member of the executive department of 

the government could be appointed. 

-SUMMARYThe office of Special Ranger is an office 

in the executive branch of the government and 

appointment’of an elected judge or a state legislator to be a Special Ranger would violate Article 

2, Section 1 of the Constitution. Designation of 

an appointed member of the staff of an elected 

member of the Legislature likewise would be 

viblative of Article 2. Section 1 of the Constitution. 

An elected member of the executive department of the government-of’the State of Texas may 

be appointed a Special Ranger provided there is no 

incompatibility between the office of the appointee 

and the office of Special Ranger. 

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Honorable Wilson E. Speir. page 7.. (H-7) 

Very truly yours, 

J0HN.L. H&L 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, Chairman 

Opinion Committ.ee 

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