Municipal Corner

Maintaining two governmental positions often requires an analysis of the constitutional dual-office prohibition, along with the common-law doctrines of self-appointment incompatibility, self-employment incompatibility, and conflicting-loyalties incompatibility. Tex. Att’y Gen. Op. No. KP-0265 (2019).

The City of Ranger (the “City”) sought an opinion by the Attorney General (“AG”) to determine whether the city manager may simultaneously serve as the police chief.

The most well-known prohibition implicated by the City’s question is the dual-office prohibition under the Texas Constitution. The Constitution prohibits a single individual from simultaneously holding “more than one civil office of emolument.” TEX. CONST. art. XVI, § 40(a). The prohibition applies if both positions are civil offices entitled to an emolument. In other words, the first question becomes whether both positions are compensated. If only one position is compensated, then the Constitutional prohibition will not apply.

If both positions are compensated, then the second question becomes whether both positions qualify as “offices” under the Constitution. Whether a position qualifies as an office under the Constitution depends on “whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.” Aldine Indep. Sch. Dist. V. Standley, 280 S.W.2d 578, 583 (Tex. 1955).

In the City’s case, the second position is the police chief. Because a municipal chief of police serves at the pleasure of the governing body, he or she does not exercise his or her authority “largely independent of the control of others.” Thus, the police chief qualifies as an employee rather than an officer of the municipality.

So though the positions of city manager and police chief are both compensated, the City need not worry about the Constitutional dual-office prohibition because one of those positions, the position of chief of police, does not qualify as an office. Consequently, the city manager may maintain both positions without running afoul of the Constitution. But what about other prohibitions that arise outside the Constitution?

The common-law doctrine of incompatibility prohibits dual public service that comes in three different flavors: (1) self-appointment incompatibility, (2) self-employment incompatibility, and (3) conflicting-loyalties compatibility.

Self-appointment incompatibility prevents one person from holding two offices, one of which appoints the other. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) (“[C]ourts have with great unanimity throughout the country declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint.”). Similarly, self-employment incompatibility prohibits one person from holding an office and an employment that the office supervises. See id.; Tex. Att’y Gen. Op. No. GA-0766 (2010) at 1. And finally, conflicting-loyalties incompatibility prohibits an individual from simultaneously holding two positions that would prevent him or her from exercising independent and disinterested judgment in either or both positions.” Tex. Att’y Gen. Op. No. GA-0169 (2004) at 2.

The first and third types of incompat-ibilities—self appointment and conflicting loyalties—only apply in instances when both positions qualify as offices. As referenced above, the police chief does not qualify as an office under the Constitution. Consequently, the AG refrained from providing an in-depth analysis of whether those incompatibilities apply.

On the other hand, the AG found self-employment incompatibility does exist in this case. The City Charter provides that the city manager appoints and removes all officers or employees of the City. This language suggests that the city manager supervises the chief of police, and to the extent that this is the case, self-employment incompatibility prohibits the city manager’s occupation of both positions.

Despite the finding of self-employment incompatibility, the AG provided a surprising final assessment given a saving provision in the City Charter, which provides that the city commission has the authority to combine the roles of city manager and chief of police. If the city commission exercises this authority, two positions will not exist to analyze. Thus, the AG decided that the city manager may take on both roles despite the applicability of the self-employment incompatibility, as long as the two positions were consolidated under the city commission’s authority.

The protections against excessive fines are applicable in Texas under both the United States Constitution and the Texas Constitution. Tex. Att’y Gen. Op. KP-0267 (2019).

The Chair of the Committee on Corrections (the “Chair”) posed several questions to the AG regarding the applicability and meaning of various Constitutional prohibitions against excessive fines.

The federal Constitution provides protection against excessive fines under the Eighth Amendment, which provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. Whether this guarantee is applicable to the states is not automatic, however.

The Bill of Rights was conceived as a limitation on the powers of the federal government, and initially, courts determined that the first Eight Amendments did not apply to the states. See McDonald v. City of Chicago, 561 U.S. 742, 754 (2010). But the Due Process Clause of the Fourteenth Amendment, adopted after the Civil War, incorporates certain of the guarantees set out in the Bill of Rights, rendering them applicable to both the States and the federal government. Id. at 764-65.

Rather than conclude that the Due Process Clause incorporates the entire Bill of Rights, however, the U.S. Supreme Court determined, “that the only rights protected against state infringement by the Due Process Clause were those rights of such a nature that they are included in the conception of due process of law.” Id. at 759. Thus, the Court has examined the Bill of Rights guarantee-by-guarantee over the years to determine which are incorporated rights applicable to the States — process known as selective incorporation. Id. at 763-65.

This year in the U.S. Supreme Court case, Timbs v. Indiana 139 S. Ct. 682, the Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Due Process Clause of the Fourteenth Amendment. 139 S. Ct. 682, 686-87 (2019). Its protection against excessive fines, like its proscription of excessive bail and cruel and unusual punishment, “guards against abuses of government’s punitive or criminal-law-enforcement authority.” Id. at 686.

The Texas Constitution also contains a prohibition on excessive fines. The first sentence of article I, section 13 provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” TEX. CONST. art. I, § 13. Thus, Texans are protected from excessive fines under both the federal and Texas Constitutions.

The obvious corollary is how a court might determine whether a fine is indeed unconstitutionally excessive, along with what circumstances or factors a court may consider when making that determination. While the U.S. Supreme Court in Timbs held that the Fourteenth Amendment incorporates the Eighth Amendment protection against fines, it did not determine whether the specific fine in question was excessive. See Timbs, 139 S. Ct. at 690-91. Instead, it remanded the case for the lower court to make that determination, and as a result, no guidance will exist until a decision comes out of the lower court.

Municipal Corner is prepared by Jacqueline Perrin. Jacqueline is an Associate in the Firm’s Districts Practice Group. If you would like additional information or have any questions related to these or other matters, please contact Jacqueline at 512.322.5839 or jperrin@lglawfirm.com.