Untitled Texas Attorney General Opinion ( 1966 )

':IHonorable
Jules Damianl, Jr., Opinion No.(C-661),
~CriminalDistrict Attorney
GalvestonCounty Re: Whether a county sheriff
Galveston,Texas may contract with an
Incorporatedmunicipality
Dear Mr. Damiani: to provide police protection.
Your letter requestingan opinion of this office sets
out the following situation:
"There exists at the present time in the County of
Galvestona large unincorporatedcommunity which is in
the process, or contemplates,holding an election for
the incorporationof this particular community. The
citizens of the .unincorporated~
area are pleased with
the degree and amount of law protection afforded to
them by our local Sheriff's Department. It is con-
templated that if the Incorporationis successful that
the community thus incorporatedwould have to expend
large sums of money for police protection that Is cur-
rently being provided by the Sheriff of Galveston
county.
"There exists a plan by the incorporatorswhere-
by'lf the community were incorporated,the community
would enter into a~contract with the Sheriff of Gal-
veston County Texas agreeing to pay salaries of a
deputy, necessary expenses for patrol units, and all,
other reasonable expenses expended by said Sheriff in
patroling the streets of the incorporatedarea. ~The
additional-deputieswhich the Sheriff might appoint
under these provisions would of course be free to
patrol areas other than the Incorporatedmunicipality."
You then requested an answer to the following'
question:
"Your opinion as to whether or not the Sheriff
may contract with this or the munici-
pality with the Sheriff
would-be sincerely
-3193-
Hon. Jules Damiani, Jr., page 2 (C-661)
In snswer to your question,Article 977 of Vernon's
Civil Statutes reads as follows:
"The municipal government of the city shall
consist of a city council composed of the mayor
and two (2) aldermen from each ward, a majority
of whom shall constitutea quorum for the trans-
action of business, except at called.meeti.ngs,or
meetings for the impositionof taxes, when two-
thirds (2/3) of a full board shall be required,
unless otherwise specified,provided that where
the city or town is not divided into wards, the.
city council shall be composed of the maycr and
five (5) aldermen, and .theprovisions of this
title relating to proceedings In a ward shall
apply to a whole city or town. The above-named
officers shall be elected by the qualified elect-
ors of the city for a term of two (2) years.
Other officers of the corporationshall be a trea-
surer, an assessor ana collector,a secretary,.'a~ :
~city attorney, a marshal, a city engineer, and
such other officers and agents as the city council
may from time to time direct, who may either be
appointed or elected as provided by ordinance.
The city council may.confer the powers and duties
of one or more of these offices unon other;offlcers
of the city."
Though there exist exceptions to the requirement set
out In Article 977, Vernon'e Civil Statutes, that the officers
of an incorporated-cityshall lncluae'a city marshal see Arti.
cles 999 and 999a, Vernon's Civil Statuteg, only titc es with
populationsunder'5.,000 people come within those exceptions.
Consequently,once an area Is Incorporated,it must provide a
city marshal, unless it has a population under 5,000 people.
In Attorney General's Opinion V-70 (1947), it was
held that a'person could not serve as both a city marshal and
a deputy sheriff since,thiswould be dual office holding which
is prohibitedby Section 40 of Article XVI of the Texas
Constitution.
Section 40.of Article XVI of the Texas Constitution
reads in part:
"No person shall hold or exercise at thensame time,
more than one civil office of emolumentJ.....
-3194
Hon. Jules Damiani, Jr., page 3 (C-661).
In-addition,an incorporatedcity may not contract
with a sheriff to provide police protection. ~A sheriff Is
elected from the 'countyat large and has the duty of preserv-
ing the peace within the.county.
Article 2.12 of the Code of Criminal Procedure provii
'
"The following are peace officers: The
sheriff and his deputies, constable,marshal or
policemen of an incorporatedtown or city, the
officers, non-commissionedofficers and privates
of the State Ranger Force and Departmentof Public
Safety, law enforcementagents of the Texas LioUor
Control Board, and any private persons specially
appointed to execute criminal process.
And Article 2.13 of the Code of Criminal‘Procedureprovides:
"It is the duty of every peace officer to
prese~rvethe peace within his jurisaictlon. To
effect this purpose, he shall use all lawful
means. He shall in every case where he is author-
ized by,the provisions of,this Code, interferewith-
out warrant to prevent or suppress crime. He shall
execute all lawful process issued to him by any magls-
trate or court. He shall give notice to some magistrate
of all 'offensescommitted within his jurisdiction;
where he has good reason .tobelieve there has been a
violation of the-penal law. He shall arrest offenders
without warrant in every case where he is authorlsed~
by law, in order that they may be taken before the
proper magistrate or court and be tried.
In Attorney General's Opinion O-773 (1339),itwas
held that a deputy sheriff could not receive
. extra compensation
from the county or from third persons for tne perx-ormance01~
acts within the scope of his nfficial duties. See Kaslin v.
Morris, 71 Tex. 584 g s.w. 739 (ma); Crosby Coun&
co. McDermett, 261 S.W. 293~(Tex. Civ. App. 1926, no history:
This holding was followed in Attorney General's Opinion Nos.
o-1565 (1939) and O-5586 (1943).
.Furthermore,the only police protectionwhich cities,
towns, and villages are authorized by statute to provide,are
police officers, special police force, city marshal and aeputiee
Article 1003, Vernon's Civil Statutes, provides:
"No person other than an elector resident of
the city shall be appointed to any office by the
city council;"
-3195-
Hon. Jules Damiani, Jr.; page 4 (C-661)
There is no provision whereby the city council of z
incorporatedcity could contract with the sheriff or his depi
ties to perform police functions. Where-the contract would
require the sheriff to perform the duties regularly required
of city police officers and city marshals, he would in effecl
be holding two office8 which is prohibitedby Section 40 of
Article XVI of the Constitutionof the State of Texas.
The above statutoryprovisions concerning incorpor-
ated cities apply to cities operating under general law char1
ers. As concerns cities operating:underhome rule charters,
Section 27 of Article 1175, Vernon's Civil Statutes, allows
the home rule cities, "To provide for police and fire deparl
ments." However, as in the case of general law cities, any
sheriff or deputy sheriff, performing the normal duties of ax
officer In a home rule city18 police department,wo,uldbe ho:
ing two offices which is In conflict with Section 40 of Artic
XVI of the Constitutionof the State of Texas.
We are, therefore,of the opinion that an incorpor
ated municipalitymay not contract with a sheriff to provide
police protection.
SUMMARY
Article 977, Vernon's Civil Statutes, requires
an incorporatedcity to provide a city marshal.
Such marBha1 may not also hold the office of sheriff
or deputy sheriff.
It is the duty of the sheriff to preserve the
peace within the county and he may not receive addi-
tional compensationfor the performance of acts within
the scope of his official duties.
Section 40 of Article XVI of the Texas Constitu-
tion prohibits a sheriff or his deputies from perform-
ing additional duties under contract which are~regularl:
performed by city police officers or city marshals.
Hon. Jules Damiani, Jr., page 5 (C-661)
Very truly yours,
WAGGONER CARR
Attorney General
9 &L
6 Wade 'Anderson
Assistant
WA:mls
APPROVED:
OPINION COMMITTEE
W. V. deppert, Chairman
Pat Bailey
Dean Arrlngton
Ronald Luna
Phlllip Crawford
.APPROVEDFoRTBEATTORNEyGtiRAL
By: T. B. Wright