May 18, 1989

Honorable Robert W. Post Dewitt County Attorney P. 0. Box 110 Cuero, Texas 77954

DearMr. 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 ofyour county is interested inemploying as a jailer an individual who isaduly elected justice of the peace of the county. You askwhether this employment would violate article XVI, section 40, of the Texas Constitution and whether these are incompatible. two positions

We first consider whether theposition incompatible with that of justice ofthepeace.of jailer is The common lawdoctrine of incompatibility bars oneperson fromholding two offices ifthe duties of the offices are inconsistent or inconflict or if one office is subordinate to the other. Thomas v. Abernathy CountY 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). Oneperson may not occupy two offices when one office may "thereby impose itspolicies on the other or subject itto control insome 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. - SanAntonio 1932, no writ). See also General Opinions H-727 (1975); Attorney O-1263 (1939) (twolaw enforcement positions held incompatible because they involve allegiance todifferent superiors who may give conflicting orders). If
an officer accepts a second position which is with one already held, he incompatible isdeemed to the first. have resigned

Thomas, suwra.

A justice of thepeace 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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on incompatibility generally refer to incompatibility of offices. See. e.a.,Attorney General Opinions JM-485 (1986) (jailermay 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 apublic office and apublic 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) (publicemployee may nothold 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 isaquestion 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 thepeace inthe criminal justice system, we have concluded that the two positions are incompatible. A review of the role of justice of thepeace as magistrate and the jailer as the sheriff's subordinate shows that there aremany occasions when the duties and loyalties of the two positions would conflict.

A jailer isemployed by the sheriff and subject to his supervision and control in matters involving his duties as jailer. De laGarza 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 isapeace officer with lawenforcement powers and duties set out by statute. Code Crim. Proc. arts. 2.12- 2.13. The jailer isthus a subordinate of apeace officer. Aperson designated as a jailer orguard 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 5415.054 (grandfather clause).

A justice of the peace isan elected officer who takes the constitutional oath of office and expressly owes his allegiance to the constitution and laws of theUnited States and Texas. Tex

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

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isa magistrate with numerous powers and duties in the criminal justice system. Code Crim. Proc. art. 2.09. It is the duty of amagistrate to issueprocess intended to aid in preventing and suppressing crime and to cause the arrest of offenders by the use of lawfulmeans. Id. art. 2.10. He also sits as an examining court to inquire into a criminal accusation against aperson and determine whether probable
cause exists toprosecute him for the offense. Seeid. arts. 2.11, 16.01, 16.17.

After the examining trial, a justice of thepeace isto make an order committing the defendant to jail, him or admitting him to bail. discharging Id. arts. 16.17, 16.20. If there isno safe jail inthe county that carries on the prosecution, themagistrate may commit the defendant to the nearest safe jail inanother county. Id. art. 16.18.

There aremany opportunities forthe sheriff to appear as a petitioner before the justice of the peace. In an instance when the justice of thepeace isalso 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 inhis oath of office. As jailer, he is subject to the sheriff's orders.

There are also some specific areaswhere the jailer's duties could conflict with the duties of the justice of the peace asmagistrate. The jailer's personal knowledge of or responsibility for conditions inthe local jailmight affect his ability asmagistrate to reach an impartial decision that "there isno safe jail inthe county.t' & art. 16.18. The magistrate might have to hold an examining trial involving adefendant with whom hehas dealt as jailer. In such a case, hewould facetheproblem of separating his personal observations as jail employee from the evidence presented tohim as judicial officer. Themost significant conflicts, however, arise in connection with the magistrate's issuance of search warrants and arrest warrants.

Amagistrate has authority to issue search warrants in accordance with theprocedures set out inchapter 18of the Code of Criminal Procedure. Article 18.01 of the Code of Criminal Procedure provides as follows:

A 'search warrant' isa written order, issuedby a magistrate and directed to a peace officer, commanding him to search for

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anyproperty or thing and to seize the same andbring itbefore suchmagistrate.

Id. art. 18.01(a).l

A search warrant may notbe issued unless sufficient facts stated in a sworn affidavit are firstpresented to satisfy the issuing magistrate that probable cause exists for its issuance. Id. art. 18.01(b). The peace officer to whom thewarrant is directed isto 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).

Amagistrate issues arrest warrants, defined aswritten orders directed to apeace officer commanding him to arrest
aperson 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 isto take the person arrested before amagistrate who will informhim of the rights set out inarticle 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 intaking prisoner before a magistrate).

The Fourth Amendment of theUnited 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 thepeace when acting asmagistrate. The determination of probable cause necessary to issuing a search warrant or arrest warrant must bemade by "aneutral and detached magistrate instead ofbeing 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). Tobe neutral

1. A justice of thepeace isnot, however, among the magistrates authorized to issuewarrants 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 forproperty constituting evidence that
a specific offense hasbeen committed or evidence tending to show that aparticular person committed an offense.

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anddetached, amagistrate must be separate and disengaged from law enforcement activities. Shadwick v. Citv ofTamva, 407U.S. 345 (1972). TheUnited States Supreme Court invalidated a search warrant issued by the state attorney general "whowas actively in charge of the investigation and laterwas tobe 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 alsoAnnot., 32 L.Ed.2d 970 (1973) (law enforcement officer, peace officer orprosecutor does not qualify as a neutral and detached magistrate).

Amagistrate with apersonal financial interest in issuing awarrant lacks the neutrality and detachment that the Fourth Amendment requires. See Connallv v. Georgia, 429 U.S. 245 (1977) (percuriam). In Connally v. Georgia, the Suvreme Court found that the issuance of search warrants bv
a justice of thepeace violated the Constitution, because justices were not salaried butwere paid a feewhen a search warrant was issued and received nothing when thewarrant was denied. The financial welfare of the justice was enhanced byhis agreement to issue a warrant, a situation which offered 'Iapossible temptation to judge" the average man as a

andwhich 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 anddetached magistrate" forthe 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.

Wewill not further consider whether a justice of the peace who is also a jailer can qualify as aneutral and detached magistrate. would invalidate A decision that he does not qualify thewarrants, butwould not
cause the individual necessarily tovacate either his judicial office
orhis 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 lawdoctrine of

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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 lawdoctrine of incompatibility prevents oneperson from serving as justice of thepeace ina county and as jailer in the
same county. The duties of the justice of thepeace as magistrate conflict with those of the jailer as an employee of the sheriff. Moreover, arrest warrants and search warrants issued by amagistrate who isalso a jailer might be invalid under the Fourth Amendment of theUnited States Constitution.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Susan L.Garrison Assistant Attorney General

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