DocketNumber: WW-1316
Judges: Will Wilson
Filed Date: 7/2/1962
Status: Precedential
Modified Date: 2/18/2017
TEE ATSORNEY GENERAL ow 7ITExA.s ~~r-11 19, 1962 Honorable J. Albert Dickie Opinion No. ~-1316 County Attorney Coryell County Re: The legality of one Gatesvllle, Texas person being a constable and:.alsoserving as an alderman of an incor- Dear Mr. Dlckie: porated city. You have requested an opinion relative to the legal- ity of one person being a constable and also serving as an alderman of an incorporated city. Your specific questions are as follows: "Can a constable receiving emolument for that offlce also serve as an alderman in an Incorporated city located in the same precinct where he serves as constable, if he does not receive any emolument for serving as such alderman? "Is the office of constable and city alderman incompatible, making the question of serving in both capacities unconstItu- tional, forcing a ~reslgnatlonof the former upon election to the latter, regardless of the question of emolument? If the answer to this question is that they are incompat- ible, then please ignore the next question. "Where the constable receives emolu- ~ment for that office and eventhough emolu- ment is provided for by ordinance for city alderman, such alderman is not In fact paid such emolument, can the constable retain the office of constable after elected alder- man, If he does not receive emolument for the office of alderman?" Section 40 of Article XVI of the Constitution of Texas reads In part: "No person shall hold or exercise, at the same time more than one civil offi.ceof ' emolument, . . .n n .J Hsnorable J. Albert Dlckie, page 2 (~~~~-13.6) Dual office holding 1s speciflcally forbidden by Section 40 of Article XVI of the Texas Constitution where both offices are civil offices of emolument. Dual office holding is forbidden to an extent, at least, by Section 33 of Article XVI wherein the~accounting officers of the State are forbidden to issue or pay a warrant upon the Treasury for the payment of salary or compensation to a civil officer, who, at the same time, holds another office of honor, trust, or profit under the United States or the State of Texas. In Graves v. M. Griffin OlNeil and Sons,189 S.W. 778
(Clv.App. 1916) th C t h Id th t Section $0 of Artl- cle XVI of the Constitu&.o?~f TExas w:s not applicable to the office of alderman of the City of Tioga, stating: ” ,Thls contention Is based upon that pGo&ion of our Constitution (section 40, article 1.6) which prohibits any person from holding in this state at the same time more than one civil office of emolument. The answer to this contention, If there be In answer to your first question, therefore, you are advised that the constitutional prohibition against the holding of more than one office of emolument is $nappllcable under the facts stated In your first questton fotithe reason that no salary for alderman is provided by statute or city ordinance. Likewise, Section 33 of Article XVI is not violated for the reason that neither a constable nor an alderman is to be paid out of the State Treasu Attorney General's Opin- ions V-242 (1947), and v-883 (1gTGj. It is also a fundamental rule of law that one per- son may not hold at one time two offices the duties of which are Incompatible, and this rule applies whether the office is named In the exceptions contained in Article XVI, Section 40. Attorney General's Opinion V-242 (1947). . . Honorable J. Albert Dickle, page 3 (WW-1316) We have considered the respective duties encumbent upon a constable and an alderman of an Incorporated city and we can conceive of no basis upon which it may be said that the offlces are Incompatible; therefore, In answer to your second question you are advised that the office of constable and the office of city alderman are not incompatible. In answer to your third question, if emolument 1s provided for by ordinance for the city alderman such office would then constitute an office of emolument the same as the office of constable constitutes an office of emolument. In such event Section 40 of Article XVI would prohibit one per- son from holding both offices, even though the individual ln- volved is not In fact paid the emolument provided for by ordinance. Therefore, in answer to your third question, If emolument is provided for by ordinance for a city alderman Section 40 of Article XVI of the Constitution of Texas will prohibit one person from holding both offices. SUMM~ARY One person may~hold at the same time both the offloes of constable and city alderman if no emolument is provided for the office of city alderman by statute or ordinance. The office of alderman and the office of constable are not incompatible. In the event emolument is provided by ordinance Section 40 oft Article XVI of the Constitution will prohibit one person from holding both offices atethe same time, ..'. even though the person attempting to hold such offices 1s not In fact paid the emolument provided by ordinance. Yours very truly, WILL WILSON Attorney General of Texas ohn Reeves JR:wb:zt:mkh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Grundy Williams Bob Shannon Frank Booth REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.