OFFICE OF THE ATTORNE” GENERAL. STATE OF TEXAS
JOHN CORNYN
December 8, 1999
The Honorable Joe Warner Bell Opinion No. JC-0148
Trinity County Attorney
P.O. Box 979 Re: Whether a deputy constable is required to
Groveton, Texas 75845 reside in the precinct for which he was appointed
(RQ-0091-JC)
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. 9 141,001(a)(5) (V emon 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 GRIM. 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, apeace 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 l-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. Grim. App. 1994), the defendant argued that an
assistant district attorney who was appointed as a special prosecutor should have been disqualified
The Honorable Joe Warner Bell - Page 2 (X-0148)
because, inter nlia, 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.
SUMMARY
A deputy constable is not required to reside in the precinct for
which he was appointed.
CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee