The Honorable Matthew C. Poston Liberty County Attorney 1923 Sam Houston, Suite 202 Liberty, Texas 77575

Dear Mr. Poston: 

### KEN PAXTON ATTORNEY GENERAL OF TEXAS

March 21, 2018
OpinionNo. KP-0189 Re: Whether an elected constable and deputy constables may simultaneously serve under the sheriff, specifically to perform tasks related to the duties of a weightenforcement officer under Transportation Code chapter 621 (RQ-0187-KP)

You ask .whether an elected constable and deputy constables may simultaneously serve underthe sheriff, specificallyto performtasks relatedto the duties ofa weight-enforcementofficer under Transportation Code chapter 621. 1 Chapter 621 generally grants weight-enforcement officersthe exclusive authorityto enforcevehicle-weightregulationsinany areaofthe State. TEX. TRANSP. CODE 

### § 621.408(a). The statutory list ofpersons who may be a weight-enforcement officer includes sheriffs deputies. 

### Id. § 621.401(3). You state that a constable and a deputy constable for Liberty County are also commissioned as deputy sheriffs. Request Letter at 2. The Department ofPublic Safety (the "Department") has the responsibility to establish uniform weighing procedures by rule to ensure that weight-enforcement officers obtain accurate measurement ofmotor vehicle weight. TEX. TRANSP. CODE § 621.402(e)(l). The Department may revoke or rescind an officer's weight-enforcement authority ifthe officer orthe officer's law enforcement agency fails to comply with those rules. Id. § 621.402(e)(2). The Department requires a law enforcement agency that employs weight-enforcement officers to enter into a memorandum of understanding with the Department and requires officers to complete the Department's weight-enforcement training to receive certification as a weight-enforcement officer. 37 TEX. ADMIN. CODE§ 4.56(b). Your question concerns whether aperson's commission as a constableor deputy constable disqualifies the person from serving as a weight-enforcement officer, not whetherthe Department should provide its training to any particular persons. We preliminarily consider whether statutes, the constitution, or the common law prohibit a constable or deputy constable from serving

'See Letter from Honorable Matthew C. Poston, Liberty Cty. Att'y, to Honorable• Ken Paxton, Tex. Att'y Gen. at I, 3 (Oct. I0, 2017), https://www.texasattorneygen~ral.gov/opinion/requests-for-opinions-rqs ("Request Letter"). ·The Honorable Matthew C. Poston

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simultaneously as a sheriffs deputy. First, no statute we are aware ofprohibits such simultaneous service. See, e.g., TEX. Loe. Gov'T CODE §§ 85.001-.023 (chapter 85, concerning sheriffs and deputy sheriffs), 86.001-.025 (chapter 86, concerning constables and deputy constables). Second, article XVI, section 40 ofthe Texas Constitution, where applicable, prohibits a person from simultaneously holding or exercising "more than one civil office of emolument." TEX. CONST. art. XVI, § 40. However, the prohibition applies only if both positions are civil offices within the meaning ofthe constitutional provision. State ex. rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig.proceeding). Whether apersonholds a civil office subject to article XVI, section 40 depends on whether the person exercises a sovereign function ofthe government "largely independent ofthe control ofothers." Id. Opinions ofthis office determine that, while elected constables are constitutional officeholders, deputy sheriffs, who serve at the direction andpleasureofthe sheriff, do notholdapublic officefor purposes ofarticle XVI, section 40. See Tex. Att'yGen. Op. Nos. GA-0470 (2006) at4, GA-0402 (2006) at 1. Accordingly, article XVI, section40 does notpreclude apersonfrom simultaneouslyholdingthe positions ofconstable or deputy constable andthe position ofdeputy sheriff. Third, the common-law doctrine of incompatibility also may preclude a person from holdingtwo public positions: See Thomas v. Abernathy Cty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted). Like the constitutional prohibition of dual officeholding, however, the common-law doctrine of incompatibility prevents 

# aperson from holding two positions only when each position constitutes an office. See id. at 152-53. Because a deputy sheriff does not hold an office, the common-law doctrine ofincompatibility does not apply. See Tex. Att'y Gen. Op. No. GA-0402 (2006) at 2; see also Tex: Att'y Gen. Op. No. GA0470 (2006) at4. In short, neither article XVI, section 40 ofthe Constitution, nor any statute, nor the common-law doctrine of incompatibility prevents a constable or deputy constable from simultaneously serving as a deputy sheriff. Wenextconsiderthe persons eligibleto be weight-enforcement officers underchapter 621 of the Transportation Code. Section 621.401 defines "weight enforcement officer" by listing persons eligible for the position: Inthis subchapter, "weight enforcement officer" means: (3) a sheriffor sheriffs deputy;

... ; or (6) a constable ordeputy constable designatedunder Section 621.4015.2

2Section 621 .40l5(a) ofthe Transportation Code provides: (continued

...)

### The Honorable Matthew C. Poston

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TEX. TRANSP. CODE§ 621.401(3), (6). Constables and deputy constablesnotmentioned in section 621.401 are not authorized by that section to be weight-enforcement officers. See Head v. State, 96 S.W.2d 981, 982 (Tex. Crim. App. 1936) (holding that a statute that gave authority to weigh vehicles to Department weight inspectors did not give such authority to constables or other peace officers). By authorizing some constables and deputy constables, section 621.401 indicates that other constables and deputy constables are excludedunder the statutory construction doctrine that "theexpressionofone impliesthe exclusion ofothers." Mid-CenturyIns. Co. of Tex. v. Kidd, 997 S.W.2d265, 273-74 (Tex. 1999) (discussing the doctrine ofexpressio unius estexclusio alterius). However, your question asks about individuals commissioned as both sheriff's deputies and as constable or constable's deputies. The statute's construction must give full effect to subsection (3)'s authorization ofsheriffs anddeputy sheriffsto serve as weight-enforcement officers. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999) (holding that courts "mustviewthe statute'sterms in context, and give them full effect"). Thus, the fact that such individuals may not have weightenforcement authority as a constable or deputy constable does not affecttheirweight-enforcement authority as a deputy sheriff. Accordingly, section 621.401 allows a person commissioned as a sheriff's deputy to serve as a weight-enforcement officer even ifthe person is also commissioned as a constable orconstable's deputy. See TEX. TRANSP. CODE§ 621.401(3).

(a) A countycommissioners courtmay designate a constable ordeputy constable ofthe county as a weight enforcement officer in a county: (1) that is a county with a population of 1.5 million ormore and is within 200 miles ofan international border; or (2) that is adjacentto a county with a population of3.3 million or more; and (3) in which a planned community is located thathas 20,000 ormore acres of land, that was originally established under the Urban .Growth and New Community Development Act of 1970 (42 U.S.C. Section 4501 et seq.), and that is subject to restrictive covenants containing ad valorem or annual variable budget based assessments on real property. TEX. TRANSP. CODE§ 621.4015(a).The Honorable Matthew C. Poston

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### SUMMARY Neither article XVI, section 40 ofthe Texas Constitution, nor any statute, nor the common-law doctrine of incompatibility precludes a constable or constable's deputy from serving simultaneously as a sheriffs deputy. A deputy sheriffmay serve as a weight-enforcement officer under section 621.401 of the Transportation Code, even ifthe person simultaneously serves as a constable ordeputy constable.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee