Untitled Texas Attorney General Opinion: KP-0442

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 11, 2023

The Honorable Laurie K. English
112th Judicial District Attorney
Post Office Box 1187
Ozona, Texas 76943

Opinion No. KP-0442

Re: May the Fire Chief or Lieutenant of the Iraan Volunteer Fire and Rescue Department
simultaneously serve on the Iraan City Council (RQ-0486-KP)

Dear Ms. English:

You ask whether the fire chief or lieutenant of the Iraan Volunteer Fire and Rescue
Department (“VFD”) may simultaneously serve on the Iraan City Council. 1 You tell us that the
City of Iraan (“City”) is a Type A general-law city with a population of about 1,240 located in
Pecos County, Texas. See Request Letter at 1. You tell us that its city council (“City Council”)
comprises five city council members and a mayor. Id. You explain that in November of 2020, two
individuals who actively serve as the fire chief and the lieutenant of the VFD were elected to the
City Council and now the City Council seeks guidance on the question whether these two
individuals may simultaneously serve in the dual positions. See id.

In relation to your request, you also explain that the City Council is aware of Local
Government Code section 21.003, “which expressly permits such dual service,” but has not
adopted any resolution thereunder. Id. at 1–2. You provide additional background facts with
respect to the operational relationship between the City and the VFD. See id. at 2 (providing such
facts “to illustrate the close relationship between” the VFD and the City). These background facts
reveal the several instances of financial support the City and Pecos County provide to the VFD.
See id.

As the City is a Type A general-law city, we begin by recognizing that general-law cities
“possess only ‘those powers and privileges that the State expressly confers upon them’” and those
implied powers that are indispensable to carrying out expressly granted powers. Builder Recovery
Servs., LLC v. Town of Westlake, 650 S.W.3d 499, 503 (Tex. 2022) (quoting Town of Lakewood
Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016)).

See Letter from Honorable Laurie K. English, 112th Judicial Dist. Att’y, to Honorable Ken Paxton, Tex.
1

Att’y Gen. at 1 (Nov. 14, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/
RQ0486KP.pdf (“Request Letter”).
The Honorable Laurie K. English - Page 2

At first glance, your question appears to implicate several laws on dual office holding
derived from the Texas Constitution and the common-law. See TEX. CONST. art. XVI, § 40; Tex.
Att’y Gen. Op. No. KP-0119 (2016) at 2 (discussing common-law incompatibility). However, a
previous opinion from this office, Opinion JC-0564, considered a question similar to yours
involving the dual service of a member of a volunteer fire department and a city council member
in conjunction with Local Government Code section 21.003’s predecessor. 2 Tex. Att’y Gen. Op.
No. JC-0564 (2002) at 1, 5. Chapter 21 addresses general provisions affecting the governing body
of a municipality. See generally TEX. LOC. GOV’T CODE §§ 21.001–.105. Section 21.003 relates to
volunteer service by members of a municipal governing body. See id. § 21.003. Opinion JC-0564
concluded that the statute was the dispositive law over the common-law with respect to volunteer
fire departments. 3 Tex. Att’y Gen. Op. No. JC-0564 (2002) at 4; see also Tex. Att’y Gen. Op. No.
GA-0084 (2003) 5–6, n.8.

Local Government Code section 21.003 provides that

[a] member of the governing body of a municipality may serve as a
volunteer for an organization that protects the health, safety, or
welfare of the municipality regardless of whether the organization
is funded or supported in whole or part by the municipality if the
governing body adopts a resolution allowing members of
the governing body to perform service of that nature.

TEX. LOC. GOV’T CODE § 21.003. Opinion JC-0564 construed section 21.003’s predecessor to
mean that “the dual service it permits is authorized” only if the city council adopts the appropriate
resolution. 4 Tex. Att’y Gen. Op. No. JC-0564 (2002) at 4. We reach the same conclusion based on
the plain text of section 21.003. Section 21.003 expressly allows the dual service “if the governing
body adopts a resolution . . . .” TEX. LOC. GOV’T CODE § 21.003 (emphasis added). The word “if”
is a conjunction that “introduc[es] a conditional clause.” NEW OXFORD AMERICAN DICTIONARY
865 (3d ed. 2010). It means “on the condition or supposition that; in the event that[.]” Id.; see also
Dao v. Mission Bend Homeowners Ass’n, Inc., No. 01-20-00597-CV, 2022 WL 3031619, at *5
(Tex. App.—Houston [1st Dist.] Aug. 2, 2022, no pet.) (“The word ‘if’ at the beginning of the
2
The language of now-section 21.003 was originally adopted as section 21.002. See Act of Apr. 20, 2001,
77th Leg., R.S., ch. 42, 2001 Tex. Gen. Laws 73. It was renumbered to section 21.003 in 2003. See Act of May 20,
2003, 78th Leg., R.S., ch. 1275, § 2(104), 2003 Tex. Gen. Laws 4140, 4146. The language of section 21.003 is identical
to the language of former section 21.002.
3
The constitutional prohibition on dual office holding does not apply here because “[a] volunteer fire fighter
does not hold an ‘office’ under article XVI, section 40 of the Texas Constitution.” Tex. Att’y Gen. Op. No. JC-0199
(2000) at 1.
4
Opinion JC-0564 relied on the principle of construction that “[w]hen a right or ‘power is granted the method
of its exercise prescribed, the prescribed method excludes all others.’” Tex. Att’y Gen. Op. No. JC-0564 (2002) at 4
(quoting Foster v. City of Waco, 255 S.W. 1104, 1105 (Tex. 1923)). It determined that in enacting section 21.003 the
Legislature intended to preempt the common law and “to occupy the field with regard to that aspect of self-
employment involving dual service on city councils and volunteer fire departments.” Id. Opinion JC-0564 determined
that “dual service in those specific instances is necessarily prohibited unless a city council adopts the kind of resolution
described in section [21.003].” Id. The opinion concluded that “in order for a member of a governing body of a
municipality to simultaneously serve as a member of a volunteer fire department, a municipality must affirmatively
adopt the kind of resolution described in section [21.003] . . . .” Id. at 5.
The Honorable Laurie K. English - Page 3

clause signals the provision’s application is conditional.”); Bagnall v. Bagnall, 225 S.W.2d 401,
402 (Tex. 1949). By its plain language section 21.003 allows the contemplated dual service only
if the governing body adopts the referenced resolution.

You tell us the City has not adopted a resolution under section 21.003. See Request Letter
at 1, 3. Accordingly, a court would likely conclude, in the absence of the resolution, that section
21.003 prohibits the simultaneous service of a person as a member of a volunteer fire department
and member of the City Council. 5

5
As your second question is contingent on a contrary conclusion, we need not address it. See Request Letter
at 1 (asking “if dual service is permitted, would the individuals serving in the dual role be allowed to vote on City
Council Agenda items that impact the VFD”).
The Honorable Laurie K. English - Page 4

S U M M A R Y

Absent a resolution adopted by the Iraan City Council under
Local Government Code section 21.003, the dual service of a person
as a member of a volunteer fire department and member of the City
Council is prohibited.

Very truly yours,

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KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee