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

DistrictAttorney Galveston

County Re: Whether a county sheriff Galveston,

Texas may contractwith an Incorporated

municipality DearMr. Damiani: to providepolice protection.

Your letter requestingan opinion of this office sets out the following situation:

"Thereexists at the present time in the County of Galvestona large unincorporated communitywhich is in the process, or contemplates, holding an election for the incorporation

of this particularcommunity. The citizensof the .unincorporated~ area are pleased with the degree and amount of law protectionafforded to them by our local Sheriff'sDepartment. It is contemplatedthat if the Incorporation is successfulthat the communitythus incorporated would have to expend large sums of money for police protection that Is currentlybeing providedby the Sheriff of Galveston county. "There exists a plan by the incorporatorswhereby'lf the communitywere incorporated, the community would enter into a~contractwith the Sheriff of Galveston County Texas agreeing to pay salariesof a deputy,necessary expenses for patrol units, and all, other reasonableexpenses expendedby said Sheriff in patroling the streets of the incorporated area. ~The additional-deputies which the Sheriffmight appoint under these provisionswould of course be free to patrol areas other than the Incorporated municipality."
You then requestedan answer to the following' question:
"Your opinion as to whether or not the Sheriff may contractwith this or the municipalitywith 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 municipalgovernment of the city shall consist of a city council composedof the mayor and two (2) aldermen from each ward, a majority of whom shall constitutea quorum for the transaction of business, except at called.meeti.ngs, or meetings for the impositionof 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 composedof the maycr and five (5) aldermen,and .the provisionsof this title relating to proceedingsIn 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 corporationshall be a treasurer, an assessor

### ana collector,a secretary,.'a~ : ~cityattorney,a marshal, a city engineer,and such other officersand agents as the city council may from time to time direct,who may either be appointedor elected as providedby ordinance. The city councilmay.confer the powers and duties of one or more of these offices unon other;offlcers of the city." Though there exist exceptionsto the requirementset out In Article 977, Vernon'e Civil Statutes, that the officers of an incorporated-city shall lncluae'acity marshal see Arti. c cles 999 and 999a, Vernon's Civil Statuteg, only tit 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 populationunder 5,000 people.

In Attorney General'sOpinionV-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 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 emolument J.....

-3194Hon. 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 CriminalProcedureprovii ' "The followingare peace officers: The sheriff and his deputies,constable,marshal or policemen of an incorporatedtown or city, the officers,non-commissioned officers and privates of the State Ranger Force and Departmentof Public Safety, law enforcementagents of the Texas LioUor ControlBoard, and any private persons specially appointed to execute criminalprocess. 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, interferewithout warrant to prevent or suppress crime. He shall execute all lawfulprocess issued to him by any maglstrate or court. He shall give notice to some magistrate of all 'offenses

committedwithin his jurisdiction; where he has good reason .to believe there has been a violationof 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 magistrateor court and be tried.
In Attorney General'sOpinion 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 holdingwas followed in Attorney General'sOpinion Nos. o-1565 (1939)and O-5586 (1943).

.Furthermore,

the only police protectionwhich cities, towns, and villages are authorizedby statute to provide,are police officers, specialpolice force, city marshal and aeputiee Article 1003, Vernon's Civil Statutes,provides:

"No person other than an elector residentof the city shall be appointed to any office by the city council;"

-3195-Hon. Jules Damiani, Jr.; page 4 (C-661)

There is no provisionwhereby the city council of z incorporated

city could contractwith the sheriff or his depi ties to performpolice functions. Where-the contractwould require the sheriff to perform the duties regularlyrequired of city police officersand city marshals,he would in effecl be holding two office8which is prohibitedby Section 40 of Article XVI of the Constitution of the State of Texas. The above statutoryprovisionsconcerningincorporated cities apply to cities operatingunder 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 sheriffor 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 conflictwith 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 contractwith 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 additional compensationfor the performanceof acts within the scope of his official duties. Section 40 of Article XVI of the Texas Constitution prohibitsa sheriff or his deputies from performing additionalduties under contractwhich are~regularl: performedby 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