Attorney General Opinion GA-0569

ATTORNEY GENERAL OF TEXAS GREG ABBOTT September 20, 2007 The Honorable Marsha Monroe Terrell County Attorney Post Office Box 745 Sanderson, Texas 79848 Dear Ms. Monroe: Opinion No. GA-0569 Re: Whether certain county officers and employees may hold additional county positions (RQ-0580-GA) You askwhether certain county officers and employees may hold additional countypositions. You first ask whether ajustice ofthe peace may simultaneously serve as a county emergency medical services employee. 1 Both the Texas Constitution and the common-law doctrine ofincompatibility restrict dual office holding. We examine each in tum. Article XVI, section 40 ofthe Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office ofemolument." TEX. CONST. art. XVI, §40(a). Justices ofthe peace are expressly excepted from the operation ofthis constitutional provision. See id. Thus, article XVI, section 40 does not bar ajustice ofthe peace from simultaneously serving as a county emergency medical services employee. Irrespective of the constitutional prohibition, the common-law doctrine of incompatibility may also serve as an impediment to the simultaneous holding oftwo positions. That doctrine has three aspects: (1) self-appointment; (2) self-employment; and (3) conflicting loyalties. See Tex. Att'y Gen. Ope No. GA-0536 (2007) at 3. Neither self-appointment nor self-employment is applicable to the situation you pose. It is the commissioners court, not the justice ofthe peace, that governsthe appointment or employmentofan emergencymedical services employee. See Tex. Att'y Gen. LO-94-046, at 2 (explaining that in a county with no emergency services district, "the county commissioners court itselfgoverns the county emergency medical or ambulance service"). Neither does an emergency medical services employee appoint or employ a justice ofthe peace, which is an elected office. See TEX. CONST. art. V, § 18 Gustice ofthe peace is an elected official). lLetter from Honorable Marsha Monroe, Terrell CountyAttorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Apr. 2, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]. The Honorable Marsha Monroe - Page 2 (GA-0569) The third aspect ofincompatibility-eonflicting loyalties-occurs only when each position is an "office." See Tex. Att'y Gen. Opt No. GA-0536 (2007) at 3. A person is an "officer" if"any sovereign function of government is conferred upon the individual to be exercised by him for the benefit of the public largely independent ofthe control ofothers." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). Under the standard ofAldine, it is clear that a county emergency medical services employee, ultimately subject to the direction and control of the commissioners court, does not hold an office. Thus, conflicting loyalties incompatibility does not bar a justice of the peace from simultaneously serving as a county emergency medical services employee. Even though no legal incompatibility exists, conflict may still arise betweenthe duties ofthe two positions. For example, in a county without a medical examiner's office, a justice ofthe peace may have the duty to perform an inquest into the death of a person. See TEX. CODE CRIM. PROC. ANN. arts. 49.02, .04 (Vernon 2006). Inquests may involve review of actions taken by emergency medical staff. See, e.g., Tex. Att'y Gen. LO-97-033, at 1 (relating to ajustice ofthe peace seeking access to ambulance "run sheets" in connection with a death investigation). Additionally, there may be other circumstances in which the jurisdiction ofthe justice court brings the justice ofthe peace in contact with emergency medical personnel and the emergency medical services division. To that end, we note that the Code ofJudicial Conduct and other ethical considerations may be implicated by the dual service at issue here. See, e.g., TEX. CODE JUD. CONDUCT, Canon 4A(1)-(2), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005) (providing that extra-judicial, activities should not: "(1) cast reasonable doubt on thejudge's capacityto act impartially as ajudge; or (2) interfere with the proper performance ofjudicial duties"); ide Canon 4D(1) ("A judge shall refrain from financial and business dealings that tend to reflect adversely onthejudge's impartiality, interfere with the proper performance of the judicial duties, or involve the judge in frequent transactions with ... persons likely to come before the court "). The justice of the peace of whom you inquire may wish to consult with the Texas Commission on Judicial Conduct regarding this dual service. See TEX. CONST. art. V, § l-a(2), 6(A), (8) (providing that the Commission is responsible, in the first instance, for applying the judicial canons to specific conduct by judges). Your second question is whether ajustice ofthe peace holds a full-time position and is thus eligible for county employee benefits. See Request Letter, supra note 1, at 1. You explain that the Terrell County Handbook defines "full-time employees" as those employees regularly employed thirty or more hours per week and that "the Justice of the Peace position has not [historically] required that the JP work 30 hours per week." Id. at 1-2. The County Handbook's provisions regarding the benefits bestowed upon full-time employees are not applicable to ajustice ofthe peace. A justice ofthe peace is not an employee of the county. Rather, the position ofjustice ofthe peace is an elected office established by the Texas Constitution. See TEX. CONST. art. V, § 18. The Honorable Marsha Monroe - Page 3 (GA-0569) The Texas Constitution requires thatjustices ofthe peace be compensated on a salary basis. See ide art. XVI, § 61(b).2 The commissioners court has authority to set the salary and other compensationforjusticesofthepeace. See TEX. Loc. GOV'TCODEANN. §§ 152.011 (Vernon 1999) (commissioners court has authority to "set the amount of the compensation, office and travel expenses, and all other allowances for county and precinct officers ... paid wholly from county funds"), 152.013(a) ("Each year the commissioners court shall set the salary, expenses, and other allowances ofelected county or precinct officers."); Tex. Att'y Gen. Ope No. GA-0193 (2004) at 3.3 We have recognized that the commissioners court, pursuant to section 152.011 of the Local Government Code, may also confer benefits such as vacation, sick leave, and holidays on county officers, as part of their compensation. See Tex. Att'y Gen. Ope Nos. GA-0322 (2005) at 3, GA-0303 (2005) at 2. In carrying out its authority to establish the salary and compensation of a justice ofthe peace, a commissioners court may not, however, prescribe the office hours ofjustices ofthe peace as this would intrude upon the powers or duties ofan independent county official. See Tex. Att'y Gen. Ope Nos. GA-0322 (2005) at 3, GA-0303 (2005) at 2. Yourthird question is whether one personmay simultaneously serve in a contractual position as director for county emergency medical services and as a full-time dispatcher for the sheriffs office. See Request Letter, supra note 1, at 1-2. Under the Aldine standard, neither of these positions constitutes an "office," and thus an individual holding both would not run afoul ofeither article XVI, section 40 ofthe Texas Constitution or the conflicting loyalties aspect ofcommon-law incompatibility. See Tex. Att'y Gen. LO-94-046, at 3 (an EMS administrator is not a public officer); cf Tex. Att'y Gen. Ope No. GA-0402 (2006) at 1 (a deputy sheriffis not an officer). Neither does one position appoint or employ the other. Thus, there is no legal bar to a person's holding both of these positions. As a practical matter, the commissioners court, as supervisor of the emergency medical services director, and the sheriff, as supervisor ofhis dispatcher, must each determine whether the duties of one position make it impossible for the individual to adequately perform the other. See Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ denied) (holding that a sheriff has sole authority over employment and termination decisions concerning sheriffs office personnel); Tex. Att'y Gen. LO-94-046, at 2 (explaining that in a county with no emergency services district, "the county commissioners court itselfgoverns the county emergencymedical orambulance service, pursuant to the common law, section 774.003(a) ofthe Health and Safety Code, or some statute other than chapter 776 ofthe Health and Safety Code ofwhich we are unaware"). 2Justices of the peace also have express statutory authority to retain fees from third parties for performing services outside those required ofthe office by law, such as marriage ceremonies. See TEX. Lac. GOV'T CODE ANN. § 154.005(a) (Vernon 1999). 3A county commissioners court has a duty to set a reasonable salary for a duly electedjustice ofthe peace. See Vondy v. Comm'rs Court o/Uvalde County, 620 S.W.2d 104, 108-09 (Tex. 1981). The Honorable Marsha Monroe - Page 4 (GA-0569) SUMMARY A justice of the peace is not barred by either article XVI, section 40 ofthe Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as a county emergency medical service employee. The justice of the peace may, however, wish to consult with the State Commission on Judicial Conduct to assess whether the Code ofJudicial Conduct bars such dual service. Ajustice ofthe peace is an elected official-not an employee ofthe county. The salary and other compensation, such as benefits, for justices ofthe peace are set by the commissioners court. A full-time dispatcher for a county sheriffs office is not barred by either article XVI, section 40 ofthe Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving in a contractual position as director of county emergency medical services. Whether one person can, as apractical matter, carry out both functions must be determined by the sheriff and the commissioners court as the respective supervisors of the two positions. Very truly yours, KENT C. SULLIVAN First Assistant Attorney General NANCY S. FULLER Chair, Opinion Committee Christy Drake-Adams Assistant Attorney General, Opinion Committee