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. Itprovides 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 aSpecial 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 ofthe 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;



### -24-Honorable Wilson E. Speir, page 2. (H-7)

(2) The prohibition ofArticle 2, Section 1of 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 ofArticle 16ofthe Constitution of Texas. Without knowing agreat deal more about the duties ofthe person under consideration for appointment as Special Ranger, we cannot advise whether those duties would be incompatible at common law with the duties ofaSpecial Ranger. You have called to our attention Attorney General Opinion No. O-1263(1939)

. mwhich itwas held that aperson 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.2 Thomas v. Abernathy County Line ,Ind.-School Dist., 290 S.W. 15: (Tex. Comm. App. (1927)); 126Tex. 45, 84 S.W. 2d 1004 (1935); ’ Sec. 28, p.42 and cases cited therein. Pruitt v. Glen Rose Ind. School Dist. .No. 1,

17Tex. Jur. 2d, Public Officers,

Article 2, Section 1 ofthe Constitution ofTexas, after providing that the powers of the government shall be divided into legislative, executive andjudicial departments, states: ,1

. . . and no person, or collection ofpersons, being of one of these departments, shall exercise any power properly attached ,to either ofthe others except inthe instances herein expressly permitted. ” The Texas Rangers are apart 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. Itprovides amaximum 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

-25-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 toprotect 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 abond. These functions involve the exercise of a “power properly attached to” the executive department and, therefore, noperson “being ofone of” the other departments, i.e. the Legislature or thejudiciary, may be appointed aSpecial Ranger. In City of Houston v. Stewart, -99 Tex. 67,87 S.W. 663 (1905) the court, inholding that there was no constitutional prohibitiqn against conferring certain additional executive powers upon~acity alderman, said, as dictum: “There is no constitutional prohibition~against conferring power upon any officer except that the authority,vested inthe 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 meantthat “being of” one of the departments includes more thanjust being one of the officers ofthat department, andthat an employee of one department is barred from assuming any position or office in either of the.oth&two departments ifhe 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 aSpecial Ranger by Article 2. Section 1of the Constitution. Likewise, an appointed member ofthe staff ofamember 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 oflegislative power. With reference to the fourth category, i.e. “an elected member of the executive department of the government ofthe State of Texas, ‘I it is possible that common law incompatibility might apply although this is afactual question upon which we can have nopresent’ opinion. The separation ofpowers limitation ofArticle 2. Section 1ofthe Constitution would not apply and, barring some incompatibility, eligibility for dual employment would depend uponwhether the provisions of Sections 33and 40 ofArticle 16 ofthe Constitution,both ofwhich were amepded in 1972, would.‘apply. -26-Honorable Wilson E. Speir, page 4. (H-7)

As amended Section 33 ofArticle 16ofthe Constitution ofTexas reads: “The Accounting Officers inthis State shall

neither draw or pay awarrant or check on funds ofthe State of Texas, whether inthe Treasury or otherwise, to any person for salary or compensation who holds at the same time more than one civil office of emolument, inviolation of Section 40. ” As amended, therefore, Section 33 is entirely dependent upon aviolation 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 ofJustice of the Peace, County Commissioner, Notary Public and Postmaster, Officer ofthe 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 ofthe United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and retired warrant officers, and retired enlisted men ofthe United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and the officers and directors of soil andwater conservation districts, unless otherwise specially provided herein.

2. “Provided, that nothing inthis Constitution shall be construed toprohibit an officer or enlisted man ofthe National Guard, and the National Guard Reserve, or an officer inthe Officers Reserve Corps of the United States, or an enlisted man inthe 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 ofthe State soil andwater 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 eatany election, general, special or primary inthis State when otherwise qualified. -27-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 andwho are notState 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 anonelective State officer may hold other nonelective offices under the. State or the United States, ifthe other office is ofbenefit to the State of Texas or is required by the State or Feder.al law, landthere is no conf’lict with the original office for which he receives., salary or compensation.

.‘~ ~~ 5

.. “No member. ofthe Legislature of this State may hold any other office or position ofprofit under this State, or the United States, except as anotary public ifqualified 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 donot ask about an officer or enlisted man inone of the services or reserve components nor~about an officer of any of,the State soil andwater conseryaticn districts. The third sentence~appl.ies to state employees who seek positions on local goyerning bodies, not within the scope, ofyour question. The fourth sentence applies to non-elective offices and, since your question specifically inquires about an elected officer inthe executive department of the government:, it does not apply.

-28-Honorable Wilson E. Speir, page 6, (H-7)

The fifth and last sentence applies exclusively to members ofthe Legislature. We find nothing, therefore, in either Section 33 or Section 40 of Article 16ofthe Constitution to deny an elected member of the executive department an appointment as aSpecial Ranger. Your letter requested our opinion as towhether 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 ofthe staff of an elected member of the State legislature could not; (4) An elected member ofthe executive department of the government could be appointed.

-SUMMARYThe office of Special Ranger is an office inthe executive branch ofthe government and appointment’of an elected judge or a state legislator to be aSpecial Ranger would violate Article 2, Section 1of the Constitution. Designation of an appointed member ofthe staff of an elected member ofthe Legislature likewise would be viblative ofArticle 2. Section 1ofthe Constitution.

An elected member ofthe executive department ofthe government-of’the State of Texas may be appointed aSpecial Ranger provided there is no incompatibility between the office of the appointee and the office ofSpecial Ranger.

-29-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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