':IHonorable Jules Damianl, Jr., Opinion No. (C-661), 

~Criminal District Attorney 

Galveston County Re: Whether a county sheriff 

Galveston, Texas may contract with an 

Incorporated municipality 

Dear Mr. Damiani: to provide police protection. 

Your letter requesting an opinion of this office sets 

out the following situation: 

"There exists at the present time in the County of 

Galveston a large unincorporated community which is in 

the process, or contemplates, holding an election for 

the incorporation of 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 contemplated that if the Incorporation is successful that 

the community thus incorporated would have to expend 

large sums of money for police protection that Is currently being provided by the Sheriff of Galveston 

county. 

"There exists a plan by the incorporators whereby'lf the community were incorporated, the community 

would enter into a~contract with the Sheriff of Galveston 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 incorporated area. ~The 

additional-deputies which the Sheriff might appoint 

under these provisions would of course be free to 

patrol areas other than the Incorporated municipality." 

You then requested an answer to the following' 

question: 

"Your opinion as to whether or not the Sheriff 

may contract with this or the municipality 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 constitute a quorum for the transaction of business, except at called.meeti.ngs, or 

meetings for the imposition of taxes, when twothirds (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 .the provisions 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 electors of the city for a term of two (2) years. 

Other officers of the corporation shall be a treasurer, 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-city shall lncluae'a city marshal see Arti. 

cles 999 and 999a, Vernon's Civil Statuteg, only tit c es with 

populations under'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,this would be dual office holding which 

is prohibited by 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 emolument J..... 

-3194 
Hon. Jules Damiani, Jr., page 3 (C-661). 

In-addition, an incorporated city may not contract 

with a sheriff to provide police protection. ~A sheriff Is 

elected from the 'county at large and has the duty of preserving 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 incorporated town or city, the 

officers, non-commissioned officers and privates 

of the State Ranger Force and Department of Public 

Safety, law enforcement agents 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‘Procedure provides: 

held 

from 

"It is the duty of every peace officer to 

prese~rve the peace within his jurisaictlon. To 

effect this purpose, he shall use all lawful 

means. He shall in every case where he is authorized by,the provisions of,this Code, interfere without warrant to prevent or suppress crime. He shall 

execute all lawful process issued to him by any maglstrate or court. He shall give notice to some magistrate 

of all 'offenses committed within his jurisdiction; 

where he has good reason .to believe 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),it was 

that a deputy sheriff could not receive extra compensation . the county or from third persons for tne perx-ormance 01~ 

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 protection which 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 

incorporated city 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 prohibited by Section 40 of 

Article XVI of the Constitution of the State of Texas. 

The above statutory provisions concerning incorporated cities apply to cities operating under general law char1 

ers. As concerns cities operating:under home rule charters, 

Section 27 of Article 1175, Vernon's Civil Statutes, allows 

the home rule cities, 

ments." 

"To provide for police and fire deparl 

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,uld be ho: 

ing two offices which is In conflict with Section 40 of Artic 

XVI of the Constitution of the State of Texas. 

We are, therefore, of the opinion that an incorpor 

ated municipality may not contract with a sheriff to provide 

police protection. 

SUMMARY 

Article 977, Vernon's Civil Statutes, requires 

an incorporated city 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 additional compensation for the performance of acts within 

the scope of his official duties. 

Section 40 of Article XVI of the Texas Constitution prohibits a sheriff or his deputies from performing 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