ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

June 7,2007 

The Honorable John W. Segrest Opinion No. GA-0550 

McLennan County Criminal District Attorney 

21 9 North 6th Street, Suite 200 Re: Effect of constable's constructive resignation 

Waco, Texas 76701 prior to the county's redistricting that abolished 

the constable's precinct (RQ-0554-GA) 

Dear Mr. Segrest: 

You ask about the effect of a constable's constructive resignation prior to the county's 

redistricting that abolished the constable's precinct.' You relate that McLennan County previously 

was divided into eight justice of the peace and constable precincts pursuant to article V, section 18 

of the Texas Constitution. See Request Letter, supra note 1, at 1. Article V, section 18 governs 

constable precincts generally and provides for transition following redistricting, as will be discussed 

in more detail below. See TEX. CONST. art. V, 18. 

Kenneth Lee Brown has served as both constable of McLennan County Precinct 6 and as a 

city council member of Moody, Texas for several years.2 He was reelected as constable of Precinct 

6 for a four-year term beginning January 1,2005. See Segrest Letter of Aug. 3 1,2006, supra note 

2, at 2. In November of that year he was reelected to the city council and began serving a new term 

in January 2006. See id. In 2006, the Commissioners Court redistricted McLennan County's 

constable precincts, abolishing Precinct 6 with a stated effective date of August 24, 2006. See 

Request Letter, supra note 1, at 1 .3 The Commissioners Court received legal advice that (1) while 

simultaneous service as constable and city council member is not unlawful per se, when Brown 

'See Letter from Honorable John W. Segrest, McLennan County Criminal District Attorney, to Honorable Greg 

Abbott, Attorney General of Texas, at 2-3 (Nov. 17, 2006) (on file with the Opinion Committee, also available at 

http:/lwww.oag.state.tx.us) [hereinafter Request Letter]. 

2See Letter attached to Request Letter from Honorable John W. Segrest, McLennan County Criminal District 

Attorney, to Honorable Jim Lewis, McLennan County Judge, at 2 (Aug. 3 1,2006) (on file with the Opinion Committee, 

also available at http://www.oag.state.tx.us) [hereinafter Segrest Letter of Aug. 3 1, 20061. 

3The U.S. Department of Justice approved the redistricting on October 18,2006. See Letter attached to Request 

Letter from John Tanner, Chief, Voting Section, U.S. Department of Justice, to David M. Guinn and Michael D. 

Morrison, Guinn and Morrison (Oct. 18, 2006) (on file with the Opinion Committee, also available at 

http://www.oag.state.tx.us). "Preclearance is the final step in the process of redistricting. If the apportionment plan is 

not precleared, it is not 'effective as law,' and cannot be implemented." Branch v. Smith, 538 U.S. 254, 3 11 (2003) 

(O'Connor, J., concurring in part and dissenting in part). 
The Honorable John W. Segrest - Page 2 (GA-0550) 

declared candidacy for reelection to the city council he constructively resigned as constable; (2) 

following Brown's constructive resignation, he held over in office as constable; and (3) Brown's 

holdover service could be terminated by appointing a successor constable. See Segrest Letter of 

Aug. 3 1, 2006, supra note 2, at 2-6. On October 31, 2006, the Commissioners Court selected a 

constable to succeed Brown. See Request Letter, supra note 1, at 2. In light of this sequence of 

events, you raise the following issues: 

1. Whether article V, section 18(c) of the constitution, which 

provides for a constable's continuing service following precinct 

redistricting, applies to a constable who has constructively resigned 

under article XVI, section 65 but continues to serve as a holdover 

officer under article XVI, section 17; and 

2. If so, whether a successor to such a constable may be appointed 

to serve the remainder of the constable's term. 

See id. at 2-3. Your questions require consideration of the interrelation of (1) the dual office-holding 

provisions of article XVI, section 40 of the Texas Constitution and the concomitant common-law 

incompatibility doctrine; (2) the resign-to-run provisions of article XVI, section 65; (3) the officeholdover provisions of article XVI, section 17; and (4) the transitional redistricting provisions of 

article V, section 18. 

I. Dual Office Holding and Common-Law Incompatibility 

A preliminary issue is whether a person may hold the offices of constable and city council 

member simultaneously. The Texas Constitution and the common law both prohibit dual office 

holding in certain circumstances. Article XVI, section 40 of the constitution does not allow a person 

to hold more than one office of emolument at the same time. See TEX. CONST. art. XVI, 5 40; 

De Alejandro v. Hunter, 951 S.W.2d 102,106 (Tex. App.-Corpus Christi 1997, orig. proceeding) 

(a person who accepts a second office of emolument automatically resigns the first office). The 

common-law doctrine of incompatibility prohibits a person from holding two offices that impose 

inconsistent or conflicting duties. See Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 

1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ).4 Dual office holding does not offend this 

aspect of the common law, however, when "neither office is accountable to, under the dominion of, 

or subordinate to the other, and neither has any right to interfere with the other in the performance 

of any official duty." Id. 

You have not asked whether the offices of county constable and city council member of 

Moody, Texas are compatible under the constitution and the common law, nor have you provided 

4The common-law doctrine of incompatibility also prohibits aperson "fromappointing himselfto another public 

position, or from holding both an office and an employment subordinate to the office." Tex. Att'y Gen. Op. No. 

GA-0488 (2006) at 2; see also Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928). Because neither a constable nor a city 

council member appoints or employs the other, these aspects of common-law incompatibility are not at issue here. 
The Honorable John W. Segrest - Page 3 (GA-0550) 

information about the offices that would help resolve the issue. Rather, your questions assume that 

the offices of county constable and Moody, Texas city council member are compatible. See Request 

Letter, supra note 1, at 2-3; see also Segrest Letter of Aug. 3 1,2006, supra note 2, at 3 (opining that 

the offices are compatible); Tex. Att' y Gen. Op. No. WW-13 16 (1 962) at 2-3 (concluding that the 

offices of constable and uncompensated alderman are not incompatible under the constitution or the 

common law). Thus, we likewise will assume that the offices here are compatible as we address 

your questions. However, as we have noted on another occasion, even when two offices are 

compatible and may be held by one person simultaneously, the constitution's resign-to-run 

provisions may complicate dual office holding in the long term, as we presently discuss. See Tex. 

Att'y Gen. Op. No. GA-0468 (2006) at 3. 

11. Resign to Run 

Article XVI, section 65 of the constitution specifies circumstances that constitute a 

constructive resignation when an officeholder runs for another office: 

If [certain district, county, and precinct officers, including constables] 

shall announce their candidacy, or shall in fact become a candidate, 

. . . for any office ofprofit or trust under the laws of this State or the 

United States other than the office then held, at any time when the 

unexpired term of the office then held shall exceed one (1) year, such 

announcement or such candidacy shall constitute an automatic 

resignation of the office then held, and the vacancy thereby created 

shall be filled pursuant to law in the same manner as other vacancies 

for such office are filled. 

TEX. CONST. art. XVI, 5 65 (emphasis added). Although no court has addressed the question, this 

office has determined that a city council member occupies an office ofprofit or trust. See Tex. Att'y 

Gen. Op. Nos. GA-0057 (2003) at 3 (advising that city council member holds an "office of profit or 

trust" under Texas Constitution article XVI, 5 12), JM-553 (1986) at 2 (advising that a home-rule 

city council member holds an office of trust under Texas Constitution article XVI, section 65), 

JM-395 (1985) at 4 (advising that general-law city council member holds an office of trust under 

Texas Constitution article XVI, section 65). Brown had more than one year left in his unexpired 

term as constable when he successfully ran for reelection as city council member, an office of profit 

or trust. Consequently, Brown automatically resigned as constable when he became a candidate for 

city council for the November 2005 election. 

111. Office Holdover 

Next we consider whether Brown's constructive resignation terminated his duty to continue 

in office as constable. Article XVI, section 17 of the constitution, known as the "holdover 

provision," states: "All officers within this State shall continue to perform the duties of their offices 

until their successors shall be duly qualified." TEX. CONST. art. XVI, 6 17. The purpose of this 

provision "is to prevent vacancies in office and a consequent cessation of the functions of 
The Honorable John W. Segrest - Page 4 (GA-0550) 

government." Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322,326 (Tex. Civ. 

App.-Amarillo 1938, no writ) (citation omitted). Where it applies, the holdover provision is 

mandatory. See id.s Accordingly, an officer's authority and responsibilities continue undiminished 

during such holdover service. An officer who holds over pursuant to the constitution is a de jure 

officer possessing all the authority of the office, as well as the right to continue receiving 

compensation. See Delamora v. State, 128 S.W.3d 344,356 (Tex. App.-Austin 2004, pet. ref d). 

Not even an officer's voluntary resignation will terminate the officer's duty to serve as a 

holdover officer under article XVI, section 17. See Willmann v. City of San Antonio, 123 S.W.3d 

469,481 (Tex. App.-San Antonio 2003, pet. denied) (citing Tex. Att'y Gen. Op. No. H-161 (1973) 

at 2); Crawford v. State, 153 S.W.3d 497, 505 (Tex. App.-Amarillo 2004, no pet.) (holding that 

constable who resigned continued as a holdover officer even though commissioners court failed to 

select a successor and was unlikely to select a successor). "Under the Constitution an officer cannot 

arbitrarily divest himself of the obligation and authority to perform the duties of his office until his 

successor qualifies; and even though he resigns and his resignation is accepted, the law operates to 

continue him in office until his successor qualifies." Hayhurst, 122 S.W.2d at 326-27 (quoting 34 

TEX. JUR. 370-71 (1934)). 

While the courts have established that an officer who tenders a resignation continues to serve 

as a holdover officer, no court has addressed whether the same principles apply to an officer whose 

resignation is constructive under article XVI, section 65. However, the policy animating article XVI, 

section 17-continuity in the functioning of government-applies whether a qualified officer's 

resignation is actual or is constructive under article XVI, section 65. Accordingly, this office has 

consistently opined that article XVI, section 17 applies to hold over an officer who constructively 

resigns under article XVI, section 65 by running for another office. See Tex. Att' y Gen. Op. Nos. 

JC-03 18 (2000) at 5, DM-377 (1996) at 5, H-161(1973) at 2, WW-1253 (1962) at 3. Here, Brown's 

duty to serve as constable did not end when he automatically resigned by running for reelection to 

the city council. Next we consider whether Brown's duty to serve as a holdover officer continued 

after the Commissioners Court abolished Precinct 6. 

IV. Transition Following Redistricting of Constable Precincts 

Article V, section 18(a) of the constitution provides for the commissioners court to divide 

the county into precincts. See TEX. CONST. art. V, 5 18(a). Generally, each precinct is to be served 

by a constable who "shall hold his office for four years and until his successor shall be elected and 

qualified." Id. Section 18(c) provides for transition in the event a commissioners court changes 

precinct boundaries: 

5Article XVI, section 17 of the constitution does not authorize an officer to hold over in one office after 

accepting and qualifying for a second office if the offices are incompatible under the constitution or the common law. 

See Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004,1007 (Tex. 1935) (concerning holdover and dual officeholder 

provisions of the constitution); Tex. Att'y Gen. Op. No. GA-0015 (2003) at 5 (concerning holdover and the common-law 

incompatibility doctrine). As noted in section I, supra, we assume that the offices of constable and city council member 

of Moody, Texas are not incompatible. 
The Honorable John W. Segrest - Page 5 (GA-0550) 

When the boundaries of justice of the peace and constable precincts 

are changed, each Justice and Constable in ofice on the effective date 

of the change, or elected to a term of office beginning on or after the 

effective date of the change, shall serve in the precinct in which the 

person resides for the term to which each was elected or appointed, 

even though the change in boundaries places the person's residence 

outside the precinct for which he was elected or appointed, abolishes 

the precinct for which he was elected or appointed, or temporarily 

results in extra Justices or Constables serving in a precinct. 

TEX. CONST. art. V, 5 18(c) (emphasis added). Under subsection (c), an order abolishing a precinct 

does not terminate the constable's duty to serve the current term of office for which the constable 

was elected or appointed. See id. Such a constable continues to hold a public office, which is 

the right, authority, and duty created and conferred by law, by which, 

for a given period, either fixed by law, or enduring at the pleasure of 

the creating power, an individual is invested with some portion of the 

sovereign functions of the government, to be exercised by him for the 

benefit of the public. 

Dunbar v. Brazoria County, 224 S.W.2d 738,740-41 (Tex. Civ. App.-Galveston 1949, writ ref d) 

(quoting Kimbrough v. Barnett, 55 S.W. 120, 122 (Tex. 1900)). Under article V, section 18(c), the 

constable's duties of office do not change after the constable's prior precinct has been abolished by 

redistricting. See Tex. Att'y Gen. Op. No. JC-0462 (2002) at 3 (advising that no "law changes a 

constable's duties in a precinct where two constables are temporarily serving because of a boundary 

change"). Nor does such redistricting change the constable's term of office. See TEX. LOC. GOV'T 

CODE ANN. 5 8 1.02 1 (b) (Vernon 1999). The only change expressed in article V, section 1 8(c) is the 

precinct in which the constable shall serve. 

Article V, section 18(c)'s key requirement is that the constable must be "in office on the 

effective date" of the change in precinct boundaries. See TEX. CONST. art. V, 5 18(c). But that 

section does not qualify its directive based on the particular circumstance that cause a person to be 

"in office" on the effective date. Brown was a de jure constable on the effective date of the 

Commissioners Court order changing precinct boundaries, albeit by virtue of his holdover status. 

As a de jure constable, Brown was "in office" on the order's effective date. See Hayhurst, 122 

S.W.2d at 326-27 ("the law operates to continue [a holdover officer] in office until his successor 

qualifies"). Therefore, under article V, 5 18(c), Brown had a duty to serve as a constable in the 

newly drawn precinct in which he resided. 

We conclude that abolishing precinct 6 did not terminate Brown's duty under article V, 

section 18(c) of the constitution to serve as a constable in the new precinct in which he resided for 

the term to which he had been elected. Different "provisions of a Constitution which relate to the 

same subject-matter should be construed together and considered in the light of each other," and 

effect must be given to each part. Collingsworth County v. Allred, 40 S.W.2d 13, 15 (Tex. 1931). 
The Honorable John W. Segrest - Page 6 

To give effect to article XVI, section 65 and article XVI, section 17, we must conclude that 

redistricting did not change the import ofBrown's constructive resignation or his status as a holdover 

officer. Accordingly, upon redistricting Brown had the duty to serve as constable in his precinct of 

residence until his successor qualified or until the end of the term for which Brown had been elected, 

whichever might occur first. And because Brown was succeeded as constable, the successor has the 

duty to serve the remainder of Brown's four-year term that began January 1,2005. 
The Honorable John W. Segrest - Page 7 (GA-0550) 

SUMMARY 

Aperson who constructivelyresigns the office of constable by 

declaring candidacy for another office of profit or trust holds over in 

office as constable until a successor qualifies. A constable who is in 

office as a holdover officer on the effective date of a commissioners 

court order that changes precinct boundaries has the duty to serve as 

constable in the precinct of the constable's residence until his 

successor qualifies or until the end of the term for which the 

constable was elected or appointed. A person who qualifies to 

succeed such a constable must serve the remainder of the holdover 

constable's term to which he was elected. 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

William A. Hill 

Assistant Attorney General, Opinion Committee