Untitled Texas Attorney General Opinion ( 1986 )

The Attorrwy General of Texas
JIM MATTOX April 24, 1986
Attorney General
Supreme Court Budding Ronorable Gerald \I. Schmidt Opinion No. .JM-$85
P. 0. BOX 12548
Gillespie County I&torney
Austin. TX. 7871 l- 2548
51214752501
County Courthouse RS: Whether an individual may
Telex 9101874.1367 Fredericksburg. Texas 78624 serve simultaneously as con-
Telecoow 512M75.0266 stable and jailer
714 JaCkSO”. su:re 700
gear Ur. Schmidt:
Dallas. TX. 75202-4506
2141742.8944 You inform us that an individual who had been working as d jailer
at the Gillespie C:ounty jail became a constable in Gillespie County.
You ask whether 'Texas 1aG prohibits him from holdicg both positicrs
4824 Alberta Ave.. Sude 1.50
simultaneously.
El Paso. TX. 79905.2793
9151533.3484
You advise us that the Individual has worked as a jailer and has
not been made a deputy sheriff. Although you do not explain exactly
-‘Wl Texas. Suite 700 what his duties are as jailer, we assume that you use the term
,sto”. TX. 77002-3111
"jailer" ss it is used in article 5116;V.T.C.S.. which desciibes a
I 13/223-5886
jailer as someone who is ia charge of a county jail but under rhe
supervision.and control of the sheriff.
a06 Broadway. SU!S 312
LubboCk, TX. 79401.3479 We find nothing in Texas law that prohibits, as a matter of Lx,
SO6/747-5238 an individual fxm serving simultaneously as a constable and zs z
:ailer.
4309 N. Tenth. Suile 8
McAllan. TX. 78501.1685 The prohibition in the Texas Constitution against dual office
5121682-4547 holding prevents .one person from holding more than one "civil office
of emolument" at one time. Tex. Const., art. XVI. 540. The courts
200 Main Plaza. Suite 400
have held that 2. person holds a "civil office" for purposes of that
San Antonio. TX. 78205.2797 provision if he wrercises any sovereign function of government for the
51212254191 benefit of the rublic ar.d is larerlv indauendent of others' control.
Ruiz V. State, iA0 S.WiZd 809. Bil '(Tex. Civ. App. - Corpus Christ1
1976, no writ); xilley v. Rpgers, 405 S.W.2d 220, 224 (Tex. Civ. Lpp.
An Equal Opportunity/
Aflirmative Action Employer
- Beaumont 1965, WIhit rtzf'd n.r.e.); Aldine Independent School
District v. Stanch, 280 S.W.Zd 578, 583 (Tex. 1955). A constable is
a civil officer of emolument. Attorney General Opinion M-45 (196SI.
A jailer is not a civil officer of emolument because he is completely
under the contrcl of a sheriff. Thus, the constitutiocsl prohibition
against dual office holding does not preclude a constable from workicg
as a jailer.
The common law doctrine of incompatibility prohibits one person
from occupying pilo offices when one office may "thereby impose its
p. 2223
Honorable Gerald W. Schmidt - Page 2 (m-485)
policies on the other or subject it to control in SOM other %a?."
Attorney General Opinions; JM-129. JM-133 (198s); see Thomas v.
Abernathy Counry Line Indewndeat School District. 29Os.w. 152 (Tex.
Coum'r~App. 1927. holdin approved); _State ea rel. Brmnan V. Martic!,
St S.W.Zd 815, 817 (Tur. C:.v.App. - San Antonio 1932. no writ).
A sheriff has a statrsory right of control over the jail in his
county and over the jaile,cs he employs. Da la Garza V. State, 579
S.W.Zd 220 (Tax. Crim. App. 1979); V.T.C.S. art. 5116. Consequently,
once a constable brings a Prisoner to the county jail, the constable
loses jurisdiction over that prisoner. Attorney General Opinion
Q-1548 (1952). Thus, the ~control a sheriff exercises over a jailer
does not invade an area in which the jailer aiso has powers and duties
as a constable and the TVO offices arc therefore not necessarily
incompatlblc. As the tour':said In State ax rel. Brennan v. Martin:
-
The duties of the two offices are wholly un-
related, are in no manner inconsistent, are never
in conflict. Neither officer is accountable to
the other, nor under bis dominion. Yeither is
subordinate to the other, nor has any power or
right to interfwe with the other in the perfor-
mance of any duty. The offices are therefore not
inconsistent or incompatible. . . .
51 S.WiZd 815 at 817. AlI:houghwe cannot conc?clc chat the FCsfti0n-c
cf constable ar.djailer are legally incoapstiblc, our cpinlon does zct
preclude the possibility chat a particular jaiier's duties would be
incompatible with the off,lce cf constable, as a matter of fact. -S.St
Attorney General Opinion Mh'-415 (1981).
Finally, none of tte information you have given us suggests
either a conflict of inl:erest under article ?eeb, V.T.C.S., or a
violation of any other Texas law.
SUMMARY
The constitw::tonalban on dual office holding
does not prohibit someone from serving simul-
taneously as a wnstable and a jailer. The common
lav doctrine of incompatibility does not, as a
matter of law, Irohibit such a situation.
.I ZM MATTCX
Attorney General of Texas
p. 2226
Ronorable Gerald W. Schmi'it- Page 3 (341-485)
JACK BIGSTOWER
First Assistant Attorney ;eneral
MARY KELLER
Executive Assistant Attornsy GeEera
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIE;
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistzrt Attorney Cereral
p. 2225