May 18, 1989 

Honorable Robert W. Post 

Dewitt County Attorney 

P. 0. Box 110 

Cuero, Texas 77954 

Dear Mr. Post: 

Opinion No. JM-1047 

Re: Whether a justice of the 

peace may also serve as a 

jailer (RQ-1633) 

You state that the sheriff of your county is interested 

in employing as a jailer an individual who is a duly elected 

justice of the peace of the county. You ask whether this 

employment would violate article XVI, section 40, of the 

Texas Constitution and whether these are 

incompatible. 

two positions 

We first consider whether the position 

incompatible with that of justice of the peace. 

of jailer is 

The common 

law doctrine of incompatibility bars one person from holding 

two offices if the duties of the offices are inconsistent or 

in conflict or if one office is subordinate to the other. 

Thomas v. Abernathy Count Y Line IndeD. School Dist., 290 

S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); Rusle v. 

Glen Rose Inde D . School Dist. No. 

Civ. App. 

1, 50 S.W.2d 375 (Tex. 

- Waco 1932), rev/d on other orounds sub nom. 

Pruitt v. Glen Rose Indew. School Dist. No. 1, 84 S.W.2d 

1004 (Tex. 1935). One person may not occupy two offices 

when one office may "thereby impose its policies on the 

other or subject it to control in some other way." 

General Opinion JM-485 (1986); 

Attorney 

see Thomas, sunra; State ex 

rel. Brennan v. Martin, 51 S.W.2d 815, 817 (Tex. Civ. App. - 

San Antonio 1932, no writ). See also General 

Opinions H-727 (1975); 

Attorney 

O-1263 (1939) (two law enforcement 

positions held incompatible because they involve allegiance 

to different superiors who may give conflicting orders). If 

an officer accepts a second position which is 

with one already held, he 

incompatible 

is deemed to the 

first. 

have resigned 

Thomas, suwra. 

A justice of the peace holds an office while a 

does not. 

jailer 

See Tex. COnst. art. XVI, .$ 40; Attorney General 

Opinion JM-485 (1986). Cases and attorney general opinions 

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Honorable Robert W. Post - Page 2 (JM-1047) 

on incompatibility generally refer to incompatibility of 

offices. See. e.a., Attorney General Opinions JM-485 (1986) 

(jailer may serve as constable); O-174 (1939) (offices of 

justice of the peace and deputy sheriff are incompatible). 

Nonetheless, this doctrine has in some cases been applied to 

find a public office and a public employment incompatible. 

See Ehlinaer v. Clark, 8 S.W.2d 666 (Tex. 1928); Attorney 

General Opinion JM-203 (1984) at 10; Attorney General Letter 

Advisory No. 114 (1975) (public employee may not hold office 

which appoints, supervises, or controls employee). 

Moreover, some opinions of this office indicate in dicta 

that the duties of an office can be legally incompatible 

with the duties of an employment. See Attorney General 

Opinions JM-485 (1986) (positions of constable and jailer 

are not legally incompatible: in particular cases 

incompatibiity might exist as a matter of fact): MW-415 

(1981) (whether positions of deputy district clerk and 

deputy county clerk are incompatible is a question of fact); 

V-1346 (1951) (office of justice of the peace is not 

incompatible with employment as laborer in county park 

division). 

After examining the duties and responsibilities of the 

jailer and the justice of the peace in the criminal justice 

system, we have concluded that the two positions are incompatible. A review of the role of justice of the peace as 

magistrate and the jailer as the sheriff's subordinate shows 

that there are many occasions when the duties and loyalties 

of the two positions would conflict. 

A jailer is employed by the sheriff and subject to his 

supervision and control in matters involving his duties as 

jailer. De la Garza v. State, 579 S.W.2d 220 (Tex. Grim. 

APP. 1979) ; Local Gov't Code 5 351.041. See also Local 

Gov't Code § 85.005 (employment of jail guards). The 

sheriff is a peace officer with law enforcement powers and 

duties set out by statute. Code Crim. Proc. arts. 2.12- 

2.13. The jailer is thus a subordinate of a peace officer. 

A person designated as a jailer or guard of a county jail 

under former article 6871, V.T.C.S., now codified as section 

85.005 of the Local Government Code, must be licensed by 

the Texas Commission on Law Enforcement Officer Standards 

and Education. Gov't Code 5 415.051. See also Gov't Code 

5 415.054 (grandfather clause). 

A justice of the peace is an elected officer who takes 

the constitutional oath of office and expressly owes his 

allegiance to the constitution and laws of the United States 

and Texas. Tex . Const. art. V, 5 18: id. art. XVI, § 1. He 

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Honorable Robert W. Post - Page 3 (JM-1047) 

is a magistrate with numerous powers and duties in the 

criminal justice system. Code Crim. Proc. art. 2.09. It is 

the duty of a magistrate to issue process intended to aid in 

preventing and suppressing crime and to cause the arrest of 

offenders by the use of lawful means. Id. art. 2.10. He 

also sits as an examining court to inquire into a criminal 

accusation against a person and determine whether probable 

cause exists to prosecute him for the offense. Seeid. 

arts. 2.11, 16.01, 16.17. 

After the examining trial, a justice of the peace is to 

make an order committing the defendant to jail, 

him or admitting him to bail. 

discharging 

Id. arts. 16.17, 16.20. If 

there is no safe jail in the county that carries on the 

prosecution, the magistrate may commit the defendant to the 

nearest safe jail in another county. Id. art. 16.18. 

There are many opportunities for the sheriff to appear 

as a petitioner before the justice of the peace. In an 

instance when the justice of the peace is also the sheriff's 

jailer, the individual who holds both positions would be 

subject to conflicting loyalties. As justice, he owes 

allegiance directly to the constitution and laws, as set out 

in his oath of office. As jailer, he is subject to the 

sheriff's orders. 

There are also some specific areas where the jailer's 

duties could conflict with the duties of the justice of the 

peace as magistrate. The jailer's personal knowledge of or 

responsibility for conditions in the local jail might affect 

his ability as magistrate to reach an impartial decision 

that "there is no safe jail in the county.t' & art. 16.18. 

The magistrate might have to hold an examining trial 

involving a defendant with whom he has dealt as jailer. In 

such a case, he would face the problem of separating his 

personal observations as jail employee from the evidence 

presented to him as judicial officer. The most significant 

conflicts, however, arise in connection with the 

magistrate's issuance of search warrants and arrest 

warrants. 

A magistrate has authority to issue search warrants in 

accordance with the procedures set out in chapter 18 of the 

Code of Criminal Procedure. Article 18.01 of the Code of 

Criminal Procedure provides as follows: 

A 'search warrant' is a written order, 

issued by a magistrate and directed to a 

peace officer, commanding him to search for 

P. 5432 
Honorable Robert W. Post - Page 4 (JM-1047) 

any property or thing and to seize the same 

and bring it before such magistrate. 

Id. art. 18.01(a).l 

A search warrant may not be issued unless sufficient 

facts stated in a sworn affidavit are first presented to 

satisfy the issuing magistrate that probable cause exists 

for its issuance. Id. art. 18.01(b). The peace officer to 

whom the warrant is directed is to take possession of the 

property and bring it before the magistrate. Id. art. 

18.09. See oenerallv MW-84 (1979) (describing procedure for 

issuing search warrants). 

A magistrate issues arrest warrants, defined as written 

orders directed to a peace officer commanding him to arrest 

a person accused of an offense against the laws of the 

state. Code Crim. Proc. arts. 15.01-15.02. See also id. 

art. 18.03 (seach warrant may also order arrest). The 

person making the arrest is to take the person arrested 

before a magistrate who will inform him of the rights set 

out in article 15.17 of the Code of Criminal Procedure and 

admit him to bail if allowed by law. Id. arts. 15.17, 

18.09. See oenerallv Attorney General Opinion JM-151 (1984) 

(describing procedures involved in taking prisoner before a 

magistrate). 

The Fourth Amendment of the United States Constitution, 

which is applicable to the states through the Fourteenth 

Amendment, establishes requirements for the issuance of 

warrants that are relevant to the conduct of the justice of 

the peace when acting as magistrate. The determination of 

probable cause necessary to issuing a search warrant or 

arrest warrant must be made by "a neutral and detached 

magistrate instead of being judged by the officer engaged in 

the often competitive enterprise of ferretins out crime." 

Johnson v. United States, 333 U.S. 10 (1948): Sharv v. 

State, 677 S.W.Zd 513 (Tex. Crim. App. 1984). To be neutral 

1. A justice of the peace is not, however, among the 

magistrates authorized to issue warrants pursuant to article 

18.02(10) of the Code of Criminal Procedure. Code Crim. 

Proc. art. 18.01(c). Article 18.02(10) permits the issuance 

of a search warrant for property constituting evidence that 

a specific offense has been committed or evidence tending to 

show that a particular person committed an offense. 

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Honorable Robert W. Post - Page 5 (JM-1047) 

and detached, a magistrate must be separate and disengaged 

from law enforcement activities. Shadwick v. Citv of Tamva, 

407 U.S. 345 (1972). The United States Supreme Court invalidated a search warrant issued by the state attorney 

general "who was actively in charge of the investigation and 

later was to be chief prosecutor at the trial." Coolidoe v. 

New Hamvshire, 403 U.S. 443, 450 (1971). In Lo-Ji Sales, 

I 

h% :hat 

. New York, 442 U.S. 319 (1979), the Supreme Court 

a town justice did not act as a neutral and 

detached magistrate when he signed an open-ended warrant for 

search and seizure of obscene material and then participated 

with police and prosecutors in seizing the property. 

See also Annot., 32 L.Ed.2d 970 (1973) (law enforcement 

officer, peace officer or prosecutor does not qualify as a 

neutral and detached magistrate). 

A magistrate with a personal financial interest in 

issuing a warrant lacks the neutrality and detachment that 

the Fourth Amendment requires. See Connallv v. Georgia, 429 

U.S. 245 (1977) (per curiam). In Connally v. Georgia, the 

Suvreme Court found that the issuance of search warrants bv 

a justice of the peace violated the Constitution, because 

justices were not salaried but were paid a fee when a search 

warrant was issued and received nothing when the warrant was 

denied. The financial welfare of the justice was enhanced 

by his agreement to issue a warrant, a situation which 

offered 'Ia possible temptation to 

judge" 

the average man as a 

and which might interfere with fair treatment of the 

accused. Id. at 250. 

These authorities suggest that a justice's involvement 

in law enforcement through his employment as jailer by a law 

enforcement officer could prevent him from qualifying as a 

"neutral and detached magistrate" for the duration of that 

employment. Moreover, his status as the sheriff's salaried 

employee might undermine his independence of judgment in 

decisions about warrants requested by the sheriff's department. 

We will not further consider whether a justice of the 

peace who is also a jailer can qualify as a neutral and 

detached magistrate. 

would invalidate 

A decision that he does not qualify 

the warrants, but would not 

cause the individual 

necessarily 

to vacate either his judicial office 

or his employment. Nonetheless, the fact that this dual 

employment raises such serious questions under the Fourth 

Amendment of the United States Constitution demonstrates 

that the duties and loyalties of the two positions are 

inconsistent. We conclude that the common law doctrine of 

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Honorable Robert W. Post - Page 6 (JM-1047) 

incompatibility prevents one person from serving as both 

justice of the peace and jailer of the county. We need not 

answer your question about 

section 40, 

the application of article XVI, 

of the Texas Constitution. 

SUMMARY 

The common law doctrine of incompatibility 

prevents one person from serving as justice 

of the peace in a county and as jailer in the 

same county. The duties of the justice of 

the peace as magistrate conflict with those 

of the jailer as an employee of the sheriff. 

Moreover, arrest warrants and search warrants 

issued by a magistrate who is also a jailer 

might be invalid under the Fourth Amendment 

of the United States Constitution. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

P. 5435