MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711 

5121475.2501 

Telex 9101674-1367 

TelecoDier 51214750266 

1607 Main St., Suite 1400 

Dallas, TX. 75201 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905 

9151533-3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002 

71316500666 

606 Broadway, Suite 312 

Lubbock, TX. 79401 

6061747-5236 

4309 N. Tenth, Suite B 

McAllen, TX. 76501 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205 

5121225-4191 

An Equal OppOrtunityI 

Affirmative Action Employe! 

The Attorney General of Texas 

December 22, 1981 

This Obinion Overrules LA-63 

Honorable Henry Wade 

Dallas Criminal District Attorney 

Condemnation Section 

6th Floor Records Building 

Dallas, Texas 75202 

opinion No. 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 the person serves as a deputy county clerk. 

Unlike counties with a population of less than 8,000, Dallas 

County is not authorized by 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. 

- See V.T.C.S. arts. 1898, 1938, 3902. 

Deputies so appointed, however, exercise power 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. 

Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Attorney General Opinion 

H-1144 (1978). Cf. Donges V. Beall, 41 S.W.2d 531 (Tex. Civ. App. - 

Ft. Worth 1931, wfit ref'd) (impliedly overruled per Green V. Stewart, 

supra) . 

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 thereby violate 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 emolument at the same time, but if the positions held 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 

p. 1415 
Honorable Henry Wade - Page 2 (MW-415) 

Advisory No. 63, which made a distinction between a "civil office," as 

used in section 40, article XVI of the constitution, and a "public 

office," as used elsewhere in the constitution. The distinction was 

based upon the different treatments accorded those terms by 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 Advisory No. 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 expressly overrule, 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 something different from the holder of a "civil 

office" in section 40, and prompted the conclusion of Letter Advisory 

NO. 63 that a "'civil office' is something more than a 'public 

employment' and something less than a 'public office."' 

In Green V. Stewart, a, the supreme court declared that the 

Aldine Independent Scho' 01 District case impliedly overruled Donges V. 

Beall, sup+a. If the Aldine ! Independent School District 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 County V. Schoenbm, 594 S.W.2d 106 (Tex. Civ. App. 

- Houston 1979, writ ref. n.r.e.); Ruiz V. State, 540 S.W.2d 809 (Tex. 

Civ. ADD. - Cornus Christi 1976. no writ). Cf. Attornev General 

Opinion'MW-39 (19'79); Letter Advisbry No. 137 (lG7). The I&z court 

applied the Aldine Independent School District definition of "public 

officer" to section 40 "civil offices." Insofar as is necessary here, 

Letter Advisory No. 63 (1973) is overruled. 

It is possible, of course, that the common law doctrine of 

incompatibility would prevent one person from holding the two deputy 

positions, but "incompatibility" is ordinarily a fact question. See 

State V. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no 

writ); Letter Advisory No. 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 

p. 1416 
Honorable Henry Wade - Page 3 (Mw-415) 

commissioners court 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 employee who serves in 

this dual capacity is not necessarily entitled to the compensation 

that would be earned by 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 employee who 

serves in this dual capacity is not necessarily 

entitled to the compensation that would 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. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Walter Davis 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

p. 1417