Untitled Texas Attorney General Opinion ( 1947 )


Menu:
  •                            Au-    il.   TlKxAts
    PRICE   DANIEL
    **T”RNtY GP.NERAL
    March 6, 1947
    Hon. John C. Marburger               ,OpinionV-70
    County Attorney
    Fayette County                       Re: May a person who is the
    LaGrange, Texas                          duly qualified and acting
    city mar3hal of an lncor-
    porated town also be ap-
    pointed as deputy sheriff?
    Dear Sir:
    Your letter of January.30, 1947, In which you requested the
    opinion of this Department is in part as follows:
    ltMaya personswho is the duly qualified and acting
    city marshal of an Incorporatedtown, who receives
    compensationfrom said city for said office, also be
    appointed and serve as deputy sheriff of the same
    county in which said city is located and receive
    compensationfrom the county for.such services as
    deputy sheriff?"
    Section 40 of Article 16 of the State Constitctlonprovides in
    part that:
    "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."
    In the case of Irvin vs. State, 177 S.‘vJ.
    2d :>7S,the Court
    had to decide whether or not the same person could be a
    policeman and special deputy sheriff at the same time and
    quoted the above Article of the Constitution, and the Court
    then went on to say:
    "The term !emolument'as used therein means pecuniary
    proceeds, gain or advantage,34 Tex. Jur. 343, Sec. 17.
    The office of policeman of an incorporatedcity and
    Deputy Sheriff are not included with the
    mentioned in the constitutionalprovisions.
    scoring ours)
    r                                                                  .
    Hon. John C. Marburger, Page 2, V-70
    The Court went on to say:
    "(2) A policeman of an incorporatedcity is an
    officer. M Do    d    tit   f Da11    T    Civ. App.
    69s.w. 2d "175yix zarte !&ton     yE'Te?'Cr
    
    161 S.W. 115
    ; Yett v. Cook, 116 $ex. 20~5,28i i:Wt7b37;
    Art. 36, V.A.C.C.P.; so also is a deputy she;iff an
    Clayton v. State, 21 'rex.App. 343 17 S W    6.
    Murray v. State, 125 Tex. Cr. R. 252, 67's:~. 2b 274;
    and Art. 36, V.A.C.C.P." (Underscoringours)
    Article 36, V.A.C.C.P., provides that:
    "The following are 'peace officers': the sheriff and
    his deputies, constable, the marshal or policeman of
    an incorporatedtown or city, the officers, non-commls-
    sloned officers and privates of the State ranger force,
    and any private parson especiallyappolnted.toexecute
    criminal process.
    In the above.cltedcase, the Court had this to say:
    "Compensationbeing authorized by lav to.be paid for
    services rendered by policemen and,deputiessheriff
    renders such offices those of emolument,under the
    provisions of the Constitutionmentioned. Hence the
    named officers could not at the same time be both
    policemen and deputies sheriff de jure or de faoto."
    Article 999, V.A.C.S., prescribes the powers and duties of a
    city marshal and.speciflcallyprovides, among other things,
    as Sollowe:
    . . . he shall have like power with the sheriff of the
    county to execute warrants; . . . In the prevention
    and suppressionof crime and arrest of offenders, he
    shall have and execute like power, authority and
    jurisdictionas the sheriff. . . He shall receive a
    salary or fees of office, or both, to be.flxed by the
    city council. The governing body of any city or town
    having less than three thou'sandInhabitantsaccording
    to the preceding Federal census, may by an ordinance,
    dispense with the off1c.eof marshal, and at the same
    time by such ordinance confer the duties of said office
    upon any peace officer of the county, but no marshal
    elected by the people shall be remove! from his office
    under the provisions of this article.
    .
    1.
    Hon.   J&n   C. Marburger, Page 3, v-70
    In the case of Torn0 vs. Hochstetler,221 S.W. 623, Justice
    Cobb3 had this to say:
    "If the offic,erwho levied the execution in this case,
    the said Gentry, while being the legal and duly
    quallfled constable, was subsequentlyappointed town
    marshal of the legally Incorporatedtown of Sinton, had
    duly qualified and acted as such, he ceased to be and
    vacated his office of constable and became the town mar-
    shal, an office wholly Incompatiblewith that of
    constable, and would have no power to execute writs of
    execution such as was done In this case. See article 16,
    8 40 of the Constitutionby Harris, and cases cited;
    State v. Brinkerhoff,66 Tex. 45, 17 S.W. log; Alsup v.
    Jordan, 
    69 Tex. 303
    6 S.W. 831
    , 5 Am St. Rep. 53,"
    In view of the foregolngprovisions of ihe Constitution,the
    statutes and the Court decisions of this State, it is the
    opinion of this Department that the duly qualified and acting
    city marshal of an Incorporatedtown, who receives compensation
    from said city for said office, may not also be appointed and
    serve as deputy sheriff of the same county In which said city
    is located aridreceive compinaatlonfrom tke county for such
    services as deputy sheriff.
    SUMMARY
    A person may not legally serve as city marshal of an
    Incorporatedtown and deputy sheriff bf the county at
    the same time, receiving compensationtherefor. Art. 16,
    Sec. 40 of State Constitution;Torn0 v3. Hochstetler,
    
    221 S.W. 723
    ; Irvin vs. State, 177 S.W. 'cd90; 34 Tex.
    Jur. 349.
    Very truly yours
    APPROVED                      ATTORNEY GE?JErlAL
    OF TEXAS
    s/ Price IZaniel              3/   Bruce Alien
    ATTORNEYGENERAL               BY
    BA:djm;jrb/cge                      Bruce Allen
    Approved Opn.Commlttee,             Assistant
    By BWB, Chairman
    

Document Info

Docket Number: V-70

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017