Office of the Attorney General - State of Texas
December 8, 1999
Dear Mr. Bell:
You have requested our opinion as to whether a deputy constable is required to reside in the precinct for which he was appointed. We conclude that no statute or constitutional provision compels a deputy constable to reside within the jurisdiction he serves.
The Election Code establishes a residency requirement for those who hold elective offices, see Tex. Elec. Code Ann. § 141.001(a)(5) (Vernon 1986), but it does not impose a residency qualification for any position other than an elective office. Tex. Att'y Gen. Op. No. M-308 (1968) at 4. No statute requires a deputy constable to reside within his precinct.
Article XVI, section 14, of the Texas Constitution, provides:
All civil officers shall reside within the State; and all district or county officers within their districts or counties, and shall keep their offices at such places as may be required by law; and failure to comply with this condition shall vacate the office so held.
A deputy constable is a peace officer. Tex. Code Crim. Proc. Ann. art. 2.12(2) (Vernon Supp. 1999). Since 1993, this office has said that a peace officer does not as a matter of law hold a civil office of emolument for purposes of article XVI, section 40, of the Texas Constitution. Tex. Att'y Gen. Op. No. DM-212 (1993) at 6. Furthermore, under ordinary circumstances, a peace officer such as a deputy constable performs his duties under the direction and control of others and hence, does not hold an office. Tex. Att'y Gen. LO-95-048, at 1-2; LO-93-027, at 1. We believe it is reasonable to conclude that the term "civil office" for purposes of article XVI, section 14, should be construed in a manner similar to that of article XVI, section 40, and that, as a result, the residency requirement of article XVI, section 14, does not apply to a deputy constable.
In Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994), the defendant argued that an assistant district attorney who was appointed as a special prosecutor should have been disqualified because, inter alia, he did not reside within the county or district in which he prosecuted the case. The court held:
An assistant district attorney acts subject to the control and supervision of the district attorney. In our view, an assistant district attorney is not a public officer, but rather a public employee. Therefore, the constitutional provisions cited by appellant are inapplicable to the facts of the case.
Id. at 824. In our opinion, a deputy constable likewise "acts subject to the control and supervision of the" constable, and "is not a public officer, but rather a public employee." Consequently, article XVI, section 14, does not impose a residency qualification on an individual who holds the position of deputy constable. We conclude that a deputy constable is not required to reside in the precinct for which he was appointed.
A deputy constable is not required to reside in the precinct for which he was appointed.
CLARK KENT ERVIN
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US