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 

Opinion No. 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 

under the sheriff, specifically to perform tasks related to the duties of a weight-enforcement officer 

under Transportation Code chapter 621. 1 Chapter 621 generally grants weight-enforcement 

officers the exclusive authority to enforce vehicle-weight regulations in any area of the State. TEX. 

TRANSP. CODE § 621.408(a). The statutory list of persons 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 of Public Safety (the "Department") has the responsibility to establish 

uniform weighing procedures by rule to ensure that weight-enforcement officers obtain accurate 

measurement of motor vehicle weight. TEX. TRANSP. CODE § 621.402(e)(l). The Department 

may revoke or rescind an officer's weight-enforcement authority if the officer or the 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 a person's commission as a constable or deputy constable 

disqualifies the person from serving as a weight-enforcement officer, not whether the 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. I 0, 2017), https://www.texasattorneygen~ral.gov/opinion/requests-for-opinions-rqs ("Request 

Letter"). · 
The Honorable Matthew C. Poston - Page 2 (KP-0189) 

simultaneously as a sheriffs deputy. First, no statute we are aware of prohibits 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 of the 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 of the constitutional provision. State ex. rel. Hill v. Pirtle, 887 S.W.2d 

921, 931 (Tex. Crim. App. 1994) (orig.proceeding). Whether a person holds a civil office subject 

to article XVI, section 40 depends on whether the person exercises a sovereign function of the 

government "largely independent of the control of others." Id. Opinions of this office determine 

that, while elected constables are constitutional officeholders, deputy sheriffs, who serve at the 

direction and pleasure of the sheriff, do not hold a public office for purposes of article XVI, section 

40. See Tex. Att'y Gen. Op. Nos. GA-0470 (2006) at 4, GA-0402 (2006) at 1. Accordingly, article 

XVI, section 40 does not preclude a person from simultaneously holding the positions of constable 

or deputy constable and the position of deputy sheriff. 

Third, the common-law doctrine of incompatibility also may preclude a person from 

holding two 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 a person 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 of incompatibility 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) at 4. In short, neither article XVI, section 40 of the Constitution, nor any statute, nor 

the common-law doctrine of incompatibility prevents a constable or deputy constable from 

simultaneously serving as a deputy sheriff. 

We next consider the persons eligible to be weight-enforcement officers under chapter 621 

of the Transportation Code. Section 621.401 defines "weight enforcement officer" by listing 

persons eligible for the position: 

In this subchapter, "weight enforcement officer" means: 

(3) a sheriff or sheriffs deputy; 

... ; or 

(6) a constable or deputy constable designated under Section 

621.4015.2 

2Section 621 .40 l 5(a) of the Transportation Code provides: 

(continued ... ) 
The Honorable Matthew C. Poston - Page 3 (KP-0189) 

TEX. TRANSP. CODE§ 621.401(3), (6). Constables and deputy constables not mentioned 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 excluded under the statutory construction doctrine that 

"the expression of one implies the exclusion of others." Mid-Century Ins. Co. of Tex. v. Kidd, 997 

S.W.2d 265, 273-74 (Tex. 1999) (discussing the doctrine of expressio unius est exclusio 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 of sheriffs and deputy sheriffs to serve as weight-enforcement officers. Phillips 

v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999) (holding that courts "must view the statute's terms 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 affect their weight-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 if the person is also commissioned 

as a constable or constable's deputy. See TEX. TRANSP. CODE§ 621.401(3). 

(a) A county commissioners court may designate a constable or deputy constable 

of the county as a weight enforcement officer in a county: 

(1) that is a county with a population of 1.5 million or more and is within 200 

miles of an international border; or 

(2) that is adjacent to a county with a population of 3 .3 million or more; and 

(3) in which a planned community is located that has 20,000 or more 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 - Page 4 (KP-0189) 

SUMMARY 

Neither article XVI, section 40 of the 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 sheriff may serve as 

a weight-enforcement officer under section 621.401 of the 

Transportation Code, even if the person simultaneously serves as a 

constable or deputy 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 of Texas 

Assistant Attorney General, Opinion Committee