Article XVI, Section 40 of the Texas Constitution (discussion page)

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This page is available for comment and discussion regarding the page Article XVI, Section 40 of the Texas Constitution.

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For determining the compatibility of two offices, "the crucial question is whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994).

Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928).

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The Texas 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, or "a pecuniary profit, gain, or advantage." State ex rel. Hill v. Pirtle, 887 S.W.2d 921,931 (Tex. Crim. App. 1994). If only one. position is compensated, the prohibition will not apply. See id.

Whether an individual is a public officer within the meaning of article XVI, section 40, 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." A/dine Indep. Sch. Dist. v.Standley, 280 S.W.2d 578,583 (Tex. 1955).

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e 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.").