ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

April 17, 2007 

The Honorable Rob Baiamonte 

Goliad County Attorney 

Post Office Box 24 

Goliad, Texas 77963 

Opinion No. GA-0540 

Re: Whether an individual may simultaneously 

serve as a constable in Goliad County and as a 

member of the board of directors of the Goliad 

County Groundwater Conservation District 

(RQ-0548-GA) 

Dear Mr. Baiamonte: 

You ask whether an individual may simultaneously serve as a constable in Goliad County 

and as a member of the board of directors of the Goliad County Groundwater Conservation District 

(the "district").' 

The district was created by a special act of the Legislature, pursuant to the authority of article 

XVI, section 59 ofthe Texas Constitution. See Act of May 25,2001,77th Leg., R.S., ch. 1359,2001 

Tex. Gen. Laws 3360,3360-63. "The boundaries of the district are coextensive with the boundaries 

of Goliad County, Texas." Id. 5 3, at 3360. "The district is governed by a board of seven directors." 

Id. 8 lO(a), at 3361. "If a vacancy occurs on the board, the remaining board members shall appoint 

a person to fill the vacancy." Id. 8 1 l(b), at 3362. You indicate that there is at present a vacancy on 

the board and that the board is considering the appointment of a Goliad County constable. See 

Request Letter, supra note 1. 

You first ask whether such appointment would contravene article XVI, section 40 of the 

Texas Constitution, which provides that "[nlo person shall hold or exercise at the same time, more 

than one civil office of emolument." TEX. CONST. art. XVI, 5 40(a); Request Letter, supra note 1. 

By definition, a member of a governing board holds an "office." See Aldine Indep. Sch. Dist. v. 

Standley, 280 S.W.2d 578, 583 (Tex. 1955) ("the determining factor which distinguishes a public 

officer from an employee is whether any sovereign function of the government is conferred upon the 

individual to be exercised by him for the benefit of the public largely independent of the control of 

others"). An "emolument" has been described as "a pecuniary profit, gain or advantage." Irwin v. 

'Letter from Honorable Rob Baiamonte, Goliad County Attomey, to Honorable Greg Abbott, Attorney General 

of Texas (Oct. 23,2006) (on file with the Opinion Committee, also available at http:/lwww.oag.state.tx.us) [hereinafter 

Request Letter]. 
The Honorable Rob Baiamonte - Page 2 (GA-0540) 

State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944). Although the reimbursement of actual 

expenses does not constitute an emolument, any amount received in excess of actual expenses is an 

emolument. Tex. Att'y Gen. Op. No. GA-0032 (2003) at 2. 

Section 5 of the district's enabling legislation provides: 

Except as otherwise provided by this Act, the district has all 

of the rights, powers, privileges, authority, functions, and duties 

provided by the general law of this state, including Chapter 36, Water 

Code, applicable to groundwater conservation districts created under 

Section 59, Article XVI, Texas Constitution. This Act prevails over 

any provision of general law that is in conflict with or inconsistent 

with this Act. 

Act of May 25, 2001, 77th Leg., R.S., ch. 1359, 5 5(a), 2001 Tex. Gen. Laws 3360, 3360. No 

provision of the district's enabling legislation makes any reference to compensation for district 

directors. However, a provision of chapter 36 of the Water Code does so: 

A director [of a groundwater conservation district] is entitled 

to receive fees of office of not more than $150 a day for each day the 

director actually spends performing the duties of a director. The fees 

of office may not exceed $9,000 a year. 

TEX. WATER CODE ANN. 5 36.060(a) (Vernon Supp. 2006). The compensation is not limited to 

reimbursement for expenses. See id. 5 36.060(a)-(b). 

"[Tlhe right to the compensation attached to a public office is an incident to the title to the 

office." Markwell v. Galveston County, 186 S.W.2d 273,277 (Tex. Civ. App.-Galveston 1945, 

writ ref d). The fact that the officer may decline the compensation, or accept less than the full 

amount, is irrelevant. See Broom v. Tyler County Comm 'rs Court, 560 S.W.2d 435,437 (Tex. Civ. 

App.-Beaumont 1977, no writ). Thus, a district director holds an "office of emolument." 

A constable also holds an "office of emolument." A constable is a "precinct officer." 

TEX. LOC. GOV'T CODE ANN. 5 154.001 (Vernon 1999). The Texas Constitution requires a 

commissioners court to compensate "justices ofthe peace, constables, deputy constables and precinct 

law enforcement officers on a salary basis." TEX. CONST. art. XVI, 5 61(b). 

We conclude that an individual may not, under article XVI, section 40(a) of the Texas 

Constitution, simultaneously serve as both a Goliad County constable and as a member of the board 

of directors of the district. Accordingly, we need not consider your question under the common-law 

doctrine of incompatibility. 
The Honorable Rob Baiamonte - Page 3 (GA-0540) 

SUMMARY 

An individual is barred by article XVI, section 40(a) of the 

Texas Constitution from simultaneously serving as both a Goliad 

County constable and as a member of the board of directors of the 

Goliad County Groundwater Conservation District. 

~ttow~eneral of Texas 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee