MARK WHITE Attorney General

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# The Attorney General of Texas

December 22, 1981

This Obinion Overrules LA-63

HonorableHenryWade Dallas CriminalDistrictAttorney Condemnation Section 6th Floor RecordsBuilding Dallas, Texas 75202 opinionNo. MW-415

Re: Whether one person may serve at same time as deputy district clerk and deputy county clerk Dear Mr. Wade:

At the request of the Commissioners Court of Dallas County, you have asked whether a person may serve as a deputy district clerk at the same time theperson servesas a deputy county clerk.

Unlike counties with a population of less than 8,000, Dallas County is not authorizedby the Texas Constitution to elect a single "clerk" who performs the duties of both district clerks and county clerks; Dallas County elects both officers. Tex. Const. art. V. $99, 20. Each of them is given statutory authority to appoint deputies. SeeV.T.C.S. arts. 1898, 1938, 3902. - Deputies so appointed,however, exercisepower in the name of the officer who appointed them and not in their own right; they do not succeed to the office if it becomes vacant. Cf. V.T.C.S. arts. 1896, 1936 (clerks pro ternpore);Code Grim. PrE. art. 2.22 (duties performed by deputies). Such deputies are employees,not officers. Greenv. Stewart, 516 S.W.2d 133 (Tex. 1974);Attorney GeneralOpinion H-1144 (1978). Cf. Donges V. Beall, 41 S.W.2d 531 (Tex. Civ. App. - Ft. Worth 1931,wfit ref'd) (impliedlyoverruledper GreenV. Stewart, supra)

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We do not believe that express statutory authorization is necessary in order for one person to serve as both deputy district clerk and deputy county clerk. However, he may not hold both positions if he would therebyviolate article XVI, section 40 of the Texas Constitution.
Article XVI, section 40 of the Texas Constitution generally prohibits one person from holding or exercising more than one civil office of emolumentat the same time,but if thepositionsheld by the deputies do not constitute "civil offices," their occupancy by a single person would not violate the provision. In 1973, before the Green V. Stewart case, supra, was decided, this office issued Letter

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AdvisoryNo. 63,whichmade a distinctionbetween a "civil office," as used in section 40, article XVI of the constitution, and a "public office," as used elsewhere in the constitution. The distinctionwas based upon the different treatmentsaccorded those termsby the Texas Supreme Court with respect to the several constitutional rights of school district tax assessors. Compare Pruitt V. Glen Rose Independent School District, 84 S.W.Zd 1004 (Tex. 1935),with Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955). However, cases decided since Letter AdvisoryNo. 63 was issued render its analysis inappropriate in deciding article XVI, section 40 dual office questions. Accordingly, since the positions of deputy county clerk and deputy district clerk are not "public offices," they cannot be "civil offices"within the meaning of article XVI, section 40 of the constitution.

The Texas Supreme Court in Aldine Independent School District, supra,discussed,but did not expresslyoverrule,a prior inconsistent holding in Pruitt. It merely-noted that the two cases involved different constitutional provisions (sections 30 and 40 of article XVI). This distinction suggested that a "public officer" in section 30 of article XVI was somethingdifferent from the holder of a "civil office" in section 40, and prompted the conclusionof LetterAdvisory NO. 63 that a "'civil office' is something more than a 'public employment'and somethingless than a 'publicoffice."'

In GreenV. Stewart,a, the supreme court declared that the Aldine Independent Scho' 01 District case impliedly overruledDonges V. Beall, sup+a. If the Aldine !Independent SchoolDistrict decision did not also impliedly overrule Pruitt v. Glenrose Independent School District, supra, in our opinion the Green V. Stewart case did. The latest case to follow them in defining "public officer" for various purposes is Pena V. Rio Grande City Consolidated Independent School District, 616 S.W.Zd 658 (Tex.Civ. App. - Eastland 1981,no writ). See also Harris CountyV. Schoenbm, 594 S.W.2d 106 (Tex.Civ. App.

- Houston 1979,writ ref. n.r.e.);RuizV. State, 540 S.W.2d 809 (Tex. Civ. ADD. - Cornus Christi 1976. no writ). Cf. Attornev General Opinion'MW-39 (19'79); Letter AdvisbryNo. 137 (lG7). The I&z court applied the Aldine IndependentSchool District definition of "public officer" to section 40 "civiloffices." Insofaras is necessaryhere, LetterAdvisoryNo. 63 (1973)is overruled.

It is possible, of course, that the common law doctrine of incompatibilitywould prevent one person from holding the two deputy positions,but "incompatibility"is ordinarily a fact question. See StateV. Martin, 51 S.W.2d 815 (Tex.Civ. App. - San Antonio 1932,no writ); LetterAdvisoryNo. 137 (1977). This office is not equipped to pass upon disputed matters of fact in its opinion process. Absent "incompatibility," no provision of law has been brought to our attention that would prevent one person, if qualified, from holding both positions if the district clerk of Dallas County and the county clerk of Dallas County agree to appoint the person as their joint deputy. Compensation for the joint employment should be set by the

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commissionerscourt pursuant to article 3912k, V.T.C.S. See V.T.C.S. arts. 3902, 3912k; Renfro v. Shropshire, 566 S.W.2d 6883s~. Civ. APP. - Eastland 1978,writ ref'd h.r.e.). An employeewho serves in this dual capacity is not necessarily entitled to the compensation thatwould be earnedby two persons each serving full time as a deputy clerk.

SUMMARY

Texas law does not prevent one person from serving in the dual capacity of deputy county clerk and deputy district clerk of Dallas County. Compensation for the joint employment should be set by the commissioners court. An employeewho
serves in this dual capacity is not necessarily entitled to the compensation thatwould be earned by two persons each serving full time ss a deputy clerk.

MARK W H-I T E Attorney General of Texas

JOHN W. FAINTER,JR. FirstAssistantAttorneyGeneral

RICHARD E. GRAY III ExecutiveAssistantAttorney General
Preparedby Bruce Youngblood AssistantAttorney General

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Jon Bible WalterDavis Rick Gilpin Jim Moellinger Bruce Youngblood

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