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Honorable Hal H. Hood - Page 2
Article 16, section 40 of the Texas Constitution prohibits one person from holding "more than one civil office of emolument," while article 16, section 33 bars the payment of State funds to anyone who is in violation of section 40. We determined in Attorney General Opinion H-665 (1975) that a volunteer fireman did not occupy a "civil office" within article 16, section 40. Thus, even though a compensated city councilman holds a civil office of emolument, see Letter Advisory No. 85 (1974), he is not prevented by article 16, section 40 from being a volunteer fireman. The common law doctrine of incompatibility prohibits the holding of two positions with inconsistent or conflicting duties. State v. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ). The existence of incompatibility is a question of fact, to be resolved in the first instance by the city. Letter Advisory No. 86 (1974). You have provided no facts indicating that the duties of the two positions are inconsistent, and we cannot say as matter of law that this common law doctrine bars the contemplated employment. See Attorney General Opinion H- 665 (1975); Letter Adivsory No. 30 (1973) (examplesYecompatible employments). Very truly yours, L. HILL S , Attorney General of Texas APPROVED: / DAVID .EK NDALL, Fi t'Assistant C. ROSRTfl E ATH;Chairman Opinion Voimmittee jsn