276 S.W. 305 (Tex. Civ. App. - EastlAnd
1925, a0 writ). On the other bend, ‘incompati-
bility’ prevents. one person from holding tuo
governmental posts if the positions are incom-
patible. The conflict in an ‘incompatibility’
situation is not between an officer’s private
interests and his public duty, but rather between
two inconsistent public duties. See Themes v.
Abernathy County Line Independent School District,
290 S.W. 152 (7%. Cosxa’n App. 1927); Attorney
General Opiniom3 JM-97 (1983); MW-170 (1980);
Attorney General ‘Letter Advisory Nos. 114 (1975);
86 (1974).
In our opinion, the offices of constable of A precinct and of
chief of police of A general law city located within the precinct are
incompatible. A constable is required to exercise independent
judgment respecting the pr’oper discharge of his duties, including his
responsibility to preselvc! the peace. See Tex. Coast. art. V, 518;
V.T.C.S. art. 6878, -- et saqy; Code Crib Proc. arts. 2.12. 2.13;
Attorney GenArAl Opinions JM-140 (1984); J’M-57 (1983). See also Webcr
v. City of SAchSe.
591 S.W.2d 563 (Tu. Civ. App. - DALLAS 1979, no
writ). Cf. State LX rel. Eightover v. Smith,
671 S.W.2d 32 (Tex.
1984) ; JoncS v. state. lj;, S.W.2d 244 (Tex. Civ. App. - TSArkAnA
1937, no writ); Attorney General Opinion J’M-57 (1983). Re is elected
by the citizens of the precinct to discharge his duties independently
of the wishes -- even if wpressed by ordinance -- of the governing
body of a city located vj.thin the precinct. On the other hand, the
chief of police of s city is subject to the control of the city
council, and is duty bound to enforce its ordinances. V.T.C.S. art.
998. The tuo officers arc subject to inconsistent duties, making the
offices incompatible. Sw Attorney General Opinion Jh-203 (1984).
---
See also V.T.C.S. arts. 9!Kl, 999a; Alexander v. City of Lampasas,
275
S.W. 614 (Tsx. Civ. App. - Austin 1925, no writ); Attorney+General
Opinion hU-394 (1981). Cf.
--- Attorney General Opinions E-727 (1975);
O-1263 (1939).
When the constable e:;ectcd in 1982 became chief of police of the
city in 1984, ipso factc, he automatically vacated the incompatible
office of constable. Tfoms
-- v. Abernathy County Line Zndependent
p. 1924
School District.
290 S.W. 1.52 (Tex. Cosss’a App. 1927 judSmt adopted).
See Attorney General Opioloo JM-97 (1983). Cf. Prultt v. Glco Rose
tndependeot School District No. 1.
84 S.W.2d 1004 ?Tex. 1935). But he
did not thereby become ioslinible to future election as coostable,
lv8a though he -continued 1x1 s&vc as chief of police. See Centeno v.
lnselmann, 519 S.U.Zd 889 ( T a x .Civ. App. - San Antxo 1975, no
xrit).is occupancy of th e police post cannot justify a refusal on
the part of the county cosmtissionern to certify his election or to
approve his bood, bccauslc once he qualifies for the office of
constable, ipso facto thl! position of chief of police is instantly
vacated (for the reason d::ocussed above) and ha holds only the office
of coostable. Ceoteoo v. -Ioselmaoo. B. See Stat= rel. Peden
v. Valeotine,
198 S.W. 1006 (Tex. Civ. App. Tort Worth 1917, writ
ref’d).
We are alao of the oploiou that the doctrine of Incompatibility
prevents a person clectei justice of the peace from serving simul-
taneously as a parttime appointed magistrate for the city.
Tvo opinions of this office -- one dated harch 16, 1913, and the
other dated October 3, 1913 -- found in the 1912-1914 Report of the
Attorney General at pages 722-724, advised that the offices of justice
of the peace and of jud,str (recorder) of a corporatlou court vere
Incompatible. The later opinion explained that although article XVI.
section 40 of the Texas Constitution exempted justices of the peace
frox its proscription against holding more tbao one civil office of
emolument, it did oot exmpt them from the further 1limitation that
additional offices held bsy thw must not be incompatible or in
cooflict vith the office! of !uatice of the peace. The oniaion
conclud.ed the offices were ioncompatible because,
to the extent of offenses arising under the State
law. the justice of the peace and the city
recorder could take jurisdiction of the same
offense, and, consequently, you vould have one man
presiding over two courts of concurrent juris-
dlctioo.
Id. at 726. See People e:t rel. Goode11 v. Garrett,
237 P. 829 (Cal.
57. 1925), %?h’g deni& See also State ax rel. Crawford v.
Andersoo. 136 g.W. 128 (10;s 1912). Cf. Thomas v. Sams,
734 F.2d 165
(5th Cir. 19841, reh’g denled,
-- 741 F.5783 (5th Cir. i984).
IO 1940, Attorney General Opinioo O-2055 overruled the 1913
opinions on grouods (1) thae the case of Luera v. State,
63 S.W.2d 699
(Tex. Grim. App. 1933), “cecessarlly” dcclded that the holding of the
tvo offices by one person :is not inhibited by the rule of incompatl-
bility, and alternative27 (2) that tvo judicial posts are not
p. 1925
Honorable Tim Rodgers - Ps8r 4 (Jn-422)
incompatible ocrely baause thq are vested vith concurrent
jurirdictioo. We agree with neither of those assertions.
The Luera case iovolv~rd a claim by a criminal defendaut that the
search vaz involved should have beeo quashed because the justice
of the peace vho swore thus affimts vas “oat s qualified and acting
legal justice of the peace” in that he had qualified and was slso
acting as the recorder of a corporation court at the time. The
Commission of Appeals vrotc!:
Article 16. $40, of the Coostitutloo. provides
that ‘no person shall hold or exercise, at the
Same time. mol’cl than one civil office of
emolument, except that of justice of the peace,
county comis~r:ioner, ootary public and
postmaster.’ etc. It will therefore be seen that
under the Cop3titution there Is nothing’
prohibiting the Lustice of the peace from holding
or lxercisiog ‘sore than one civil office of
emolumcot. (Eu$&sis
added).
63 S.W.2d at 701.
From the foregoing pmsage it is apparent tbat the Commissioo of
Appeals in its original opinion did oot consider the rule against
holdiog incompatible offices, but considered ouly the article XVI,
section 40 constitutiona:. prohibition against the holding of tvo
offices of amolment. from vhich justices of the peace are excepted.
The Court of Criminal Al~peals approved the opinion: a motion for
rehearing vas overruled bmause the court remained convinced of “the
correctness of the disposPtion made” aod it sav oo need for further
vriting upon propositions that vere “correctly decided” in the
origioal opioioo.
The disposition of the case vas correct, of course, if the motion
to quash the search varrant: was properly denied - no matter what vas
the proper ground for its, denial. Cf. State v. Cook, 160 S.E.2d Il9
(N.C. 1968). The argument that arti= XVI, section 40 of the Texas
Constitution required quashal was properly refuted by the court, but
if the issue of locompatibility hsd been raised and the offices had
been pronounced incompa ::lble, the outcome would oot have been
different.
Judges of corporatj 00 courts may also execute valid search
varranfs. O’Quinn v. State, 462 S.V.2d 583 (Tu. Grim. App. 1971).
Cf. Carnell V. State, 70 ?rW.2d 152 (Tex. Crlm. hpp. 1934). Because
the first of the Incompatible offices would lwze been vacated by
acceptance of the second me, the person taking the affidavits was an
officer authorized to do :w, whichever of the offices was the one last
p. 1926
Booorablo Tim Rodgers - Palie 5 (JM-422)
lcctpttd. Stt Ctnrtoo v. fnetlmann. e; State v. Cook, m.
Conrtqutotly vt, do oot bd?iltve eht Lutra tes t
“ntcertorllp~ dtcidtd
that cht holding of tht ol’ficcs of jui of tht QttCt and rtcordtr
of tht corporaclot court b:r oot person ir aoc iohibirtd by tht rult of
incompatibility. Nor do vt thiok rht alternative rttaoning of
Attornty GtntrtlOpinion 0,~:!055 requirts rher cooclusion.
Attornty Gtocral Op~loion O-2055 argued that tht eoocurrtnr
jurisdiction txtrcittd by the juetict court and rht municipal court
could ooC, in itself, rtndgcr the offices incompatible btcaust:
Ntithcr office is accounCable to, under the
dominion of, or subordinate 20 the other; ntithtr
ha8 any righr or power to ioCcrftre vith the other
in the performawe of any duty. An apptal from
either court has no rtlation to rht othtr, but is
indeptodtotly to other courts.
We belitve rhc fortgoing 1:atslogue of conflicts ntithtr accurately
states tht complett test ,:I incompatibility. nor accurately rtfltcts
tht full relationship betieeo courts of concurrent jurisdiction. See
Codt Grim. Proc. art. 4.14; Peoplt tx rel. Goodtll v. Garrttt. 6
Courts of coocurrtnt jurisdiction may waive their jurisdiction in
favor of each other vitk. respect to particular eests. Flares v.
Statt. 487 S.W.Zd 122 (Tu. Grim. AQQ. 1972). If one person acted as
bothjustice of the peace and city judge at tht same time. it would be
within his power to manipc,latc the Income of the courts over vhich ht
presidtd to the advaotagt or disadvantagt of either rhe county or tht
city -- to both of whict. ht would owe a duey of colltctloo. The
reeeoo is. justices of tht ‘ptact are requlrtd to account to the county
trtasurtr for the fiots colltcttd by his court, whereas fines
colltcttd by city judges ,go into ciry coffers. Ste V.T.C.S. art.
1619; Codt Grim. Proc. art. 45.06. By waiving the jurisdiction of the
court in favor of the other court, the “justice of ehe peace/city
judgt” could enrich ont &wtrnmental cotiCy at the expense of the
other, depending, ptrhaps, on which of them used such fees to comptn-
sate the offictr colltctirlg rhem. -Cf. Attorney General Opinion C-718
(1966).
It is not correct, t’xrefort. to say that ntither court has any
right or power to interf s:ce vith the other. But there is another
reason why Attorney Central Opinion O-2055 reached an improper result.
The test it formulated Is too narrow. Courts -- Texas courts among
them -- look to the publx: policy which the rule against incompati-
bility seeks to Implement, and not mtrely to recitals of conflicrinR
relationships cond&ned :.ri the past. see 63 Am. Jur. 2d Fubli;
Officers and Employees 578, at 726; Stexo State lx rel. Knox v.
Hadley, 7 Wise. 700 (1860:; People ex rel. Goode11 v. Garrett, supra.
p. 1927
Roaoreblt TIB godgtrr - PeI,e 6 (RI-4221
Cf. ehlingtr v. Clerk, 8 Z;.W.2d 666 (Tu. 1928); gaskiot v. Stete lx
x. Earringtoo.
516 P.2d 1.171 (Wyo. 1973); Attorney Gtotrel Lttter
Advisory No. 114 (1975).
Thlt offict concludtd In Attornty Ctotrel Opinion WU-1359 that
oot ptrson could not hold 8~ the teme dme both tht offict of justice
of tht ptace, plect oat, end justice of tht QUCC. Qhce two. 10 8
single precinct. The opinion dlrcusttd article V, srcrlon 18 of the
Turns Constltutioo, but tht! rtel bttit for dtcition setme to hevt been
public policy refltcttd by tht incompatibility doctriot:
[W]hIle P Justice of the Peace may hold somt other
offlct oat 1ocom)atlblt with the office of Justict
of the Petct, lw may not hold tht offlcts of
Justice of tht Peace, Prtclnct 1. Piece 1, and
Justice of the I'sace, Precinct 1, Place 2 et the
semt time.
Cf. Attorney Central Opinions V-1192 (1951); V-828 (1949). Wt btlieve
Attorney Gtntral Opinion SW-1359 ceo be viewed no overruling Attornty
Gtntral Opinion O-2055. sub tilentio.
--
Rttsooiog slmiler tf) that ustd by Attorney General Opinion
WV-1359 ves used IO the wet of Sate ex rel. Knox v. Etdlte, s\tprrr,
nod Ptoplt tx rtl. Goodel:,v.
Garrttt. supra. to hold that we person
could not at the eeme time eerve et 8 justice of eht ptect end e city
judge with ovtrleppiog concurrent jurisdiction. Set rlso Statt ex
rel. Crawford v. Andtrtoo, suprl; In rt Corum. 62 P.661 (Kens. 1900).
Cf. Eeocock v. Sape 225 lio.2d 411 (Fla. 1969); Stete v. Cook, aupra.
Wcbtlltve the cour;t of T8cxes would dtclart rhtt the statutory pro-
visions for a “judge” of l:lre munlcIpa1 court (V.T.C.S. art. 1196) end
for “ont justice of tht ptrtrct” In tech precinct. (V.T.C.S. err. 2373)
coottmplete that each offIct will bt fllltd by a different ptrson. end
thet the officts ere incoprpatlhlt. Cf. Iitrris County v. Stevert.
41
S.W. 650 (Ttx. 1897); -- Ex Earta WIlbarF,
55 S.W. 968 (Tex. CrIm. App.
1900).
Inasmuch es we contludt that the doctrine of incompatibility
prevents a juscicc of the peace from simultaneously holding the office
of city magistrate, and p'cevents a constable from holding at the same
time the office of chief of police for a city within the precinct, we
do not reach your final qutstion. Attorney General Opinion O-2055
(1940) is overruled.
SUMMARY
The dcccrim of incompatibility prevents a
constable from s,imultantously holding the office
of chief of police for a city located vithin the
p. 1928
Emoreblr Tim Rodgtrr - PegI, 7 (34422)
prtcinct. nod prrreots e juatict of tht ptact from
holding at tht sme timt the office of parrc+be
maglsrrett for the city.
JIM MATIOX
Attoroey Generel of funs
JACK HIGETOWER
First Assistsnt Attorney Gtwral
XARYKELLER
Executive Assistant Atrornq Gcntral
ROBERTGRAY
sQtciel.keiStaot Attorney Gc!ntral
RICK GILPIN
Chairman. OpIoioo Coumittee
Prepared by Bruce Younghlootl
Assistant Attorney Gtntral
p. 1929