Untitled Texas Attorney General Opinion ( 1947 )

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