-
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