Texas Attorney General Opinion: LO98-035 Page: 1 of 3
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state of Texas
DAN MORALES
ATTORNEY GENERAL April 2, 1998
The Honorable James M. Kuboviak Letter Opinion No. 98-035
Brazos County Attorney
300 E. 26th St., Suite 325 Re: Whether a district clerk may also serve as a
Bryan, Texas 77803 reserve deputy sheriff (RQ-977)
Dear Mr. Kuboviak:
You ask whether a district clerk may also serve as an unpaid reserve deputy sheriff without
violating either article XVI, section 40 of the Texas Constitution, which forbids dual office holding,
or the common-law doctrine of incompatibility. In our view such service does not as a matter of law
violate either the Constitution or the common law.
A similar question was presented to this office in Letter Opinion No. 97-081 (1997), which
considered whether a county commissioner could serve as a reserve deputy. In that opinion, we
found neither a constitutional nor a common-law bar. However, there are some important
differences between the two situations.
Like a county commissioner, as an elected constitutional officer the district clerk holds a civil
office of emolument for the purposes of article XVI, section 40. See Tex. Const. art. V, 9
(establishing office of district clerk). However, unlike the county commissioner, the district clerk
is not exempted from the strictures of article XVI, section 40. Accordingly, were the position of
reserve deputy sheriff as a matter of law a civil office of emolument, the clerk would be barred from
holding both offices.
You suggest that there is no constitutional problem because "Brazos County reserves are
unpaid," and hence the position is not an office of emolument. While we agree that article XVI,
section 40 does not present a bar here, it is not because reserve deputy sheriffs are not compensated.
Under Local Government Code section 152.075, the commissioners court of Brazos County could
if it so chose compensate reserve deputy sheriffs.
Rather, article XVI, section 40 presents no bar here because deputy sheriffs do not hold a
civil office of emolument as a matter of law. At one time, this office, following Irwin v. State, 147
Tex. Crim 6, 177 S.W.2d 970 (1944), held that peace officers were civil officers for the purposes of
article XVI, section 40. See, e.g., Attorney General Opinion V-70 (1947). However, Attorney
General Opinion DM-212 (1993) explicitly overruled all such opinions. See Attorney General
Opinion DM-212 (1993) at 6. Following Aldine Independent School District v. Standley, 280
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO98-035, text, April 2, 1998; (https://texashistory.unt.edu/ark:/67531/metapth277331/m1/1/: accessed July 9, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.