Article XVI, Section 40 of the Texas Constitution

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As amended November 3, 2009:

(a) No person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace, County Commissioner, Notary Public and Postmaster, Officer of the National Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States and enlisted men of the National Guard, the National Guard Reserve, and the Organized Reserves of the United States, and retired officers of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and retired warrant officers, and retired enlisted men of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and officers and enlisted members of the Texas State Guard and any other active militia or military force organized under state law, and the officers and directors of soil and water conservation districts, unless otherwise specially provided herein. Provided, that nothing in this Constitution shall be construed to prohibit an officer or enlisted man of the National Guard, the National Guard Reserve, the Texas State Guard, and any other active militia or military force organized under state law, or an officer in the Officers Reserve Corps of the United States, or an enlisted man in the Organized Reserves of the United States, or retired officers of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and retired warrant officers, and retired enlisted men of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and officers of the State soil and water conservation districts, from holding at the same time any other office or position of honor, trust or profit, under this State or the United States, or from voting at any election, general, special or primary in this State when otherwise qualified.

(b) State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts. Such State employees or other individuals may not receive a salary for serving as members of such governing bodies, except that: (1) a schoolteacher, retired schoolteacher, or retired school administrator may receive compensation for serving as a member of a governing body of a school district, city, town, or local governmental district, including a water district created under Section 59, Article XVI, or Section 52, Article III; and (2) a faculty member or retired faculty member of a public institution of higher education may receive compensation for serving as a member of a governing body of a water district created under Section 59 of this article or under Section 52, Article III, of this constitution.

(c) It is further provided that a nonelective State officer may hold other nonelective offices under the State or the United States, if the other office is of benefit to the State of Texas or is required by the State or Federal law, and there is no conflict with the original office for which he receives salary or compensation.

(d) No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law.

Editor Comments

This section concerning dual office-holding must be read together with Article XVI, Section 12 and Article XVI, Section 33.

As adopted in 1876, it read: "No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of the peace, county commissioner, notary public, and postmaster unless otherwise specially provided herein."

It has been amended six times. The most recent amendment allowed members of a military force organized under Texas law to hold another office.

Steve Smith

Recent Decisions

None.

Historic Decisions

  • Irwin v. State, 177 S.W.2d 970, 973 (Tex.Crim.App. 1944) (citations omitted) ("The term 'emolument', as used therein, means a pecuniary profit, gain or advantage. The offices of policeman of an incorporated city and a deputy sheriff are not included within the exceptions mentioned in the constitutional provision. A policeman of an incorporated city is . . . so also is a deputy sheriff an officer. Compensation being authorized by law to be paid for services rendered by policemen and deputies sheriff renders such offices those of emolument, under the provisions of the Constitution mentioned. Hence the named officers could not at the same time be both policemen and deputies sheriff de jure or de facto.")
  • Cramer v. Sheppard, 167 S.W.2d 147, 156 (Tex. 1942) ("Furthermore, we may safely assume that a person who holds a civil office, and who is patriotic enough to temporarily leave such office and serve his country in time of war, will be patriotic enough to surrender such civil office if his absence therefrom stops the functioning of such office. It clearly appears that Judge Dixon was not appointed a member of the Regular Army. It logically follows that he was commissioned a reserve officer . . . and hence is in the Officers' Reserve Corps of the United States. By virtue of Sections 33 and 40, supra, he did not vacate his office of district judge when he accepted the commission as above indicated.")
  • Carpenter v. Sheppard, 145 S.W.2d 562, 567 (Tex. 1940) ("We must assume that those who are in charge of the military affairs of this Nation and this State will conduct themselves so as to protect the rights of the people and the administration of their affairs by their public officers. By virtue of Sections 33 and 40 of Article 16 of the Constitution, we hold that Relator did not vacate his office as a member and Chairman and Executive Director of the Texas Unemployment Compensation Commission, when called into the military service of the United States . . . . We further hold that his appointment as Major in the United States Army does not violate Section 12 of Article 16 of the Constitution.")
  • Pruitt v. Glen Rose I.S.D., 84 S.W.2d 1004, 1006 (Tex. 1935) (citations omitted) ("The Court of Civil Appeals correctly held that the tax collector of this particular district and the tax collector of the county are therefore two separate and distinct offices, each of emolument, and when Kugle qualified as county tax collector, he automatically forfeited his right to the office of collector for the school district, because the holding of both said offices . . . . If a person holding an office is elected or appointed to another (where the two offices cannot be legally held by the same person) and he accepts and qualifies as to the second, such acceptance and qualification operate, ipso facto, as a resignation of the former office.")
  • Gaal v. Townsend, 14 S.W. 365, 366 (Tex. 1890) ("Whether appellant vacated his office or not by accepting the office of mayor . . . depends upon the proper construction of section 40 of article 16 of the present constitution. That section is as follows: 'No person shall hold or exercise at the same time more than one civil office of emolument, except the justice of the peace, county commissioner, notary public, and postmaster, unless otherwise specially provided.' Does this mean that an incumbent can hold either of the offices named, and at the same time any other office, or that he can only hold two offices when both are among those specially designated? We think the former is the proper construction.")

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