The Honorable Eugene Russell County Attorney a Burn& County Burn&, Texas 78611 Opinion No, H-727 Re: May a.small city pay adeputy sheriff toperform the duties ofa town marshal

. Dear Mr. Russell: You advise that

### the City ofBertram has by ordinance abolished the office of City Marahal and conferred the duties ofthe office upon anamed deputy sheriff of Burn& County and pays that individual a salary inaddition to that which he receives from the county. You ask ifthe deputy may perform, and be paid for performing, the city marshal duties while also receiving pay from Burnet County as adeputy sheriff. Article 999, V.T. C.S., provides:

The marshal ofthe city shall be ex officio chief 

### of police, and may appoint one or more deputies which appointment shall only be valid upon the approval of the city council.

. . . Inthe prevention and suppression ofcrime and arrest of offenders, he shall have, possess and execute like power, authority, andjurisdiction as the sheriff. He shall perform such other duties and possess such other powers and authority as the city council may by ordinance require and confer, not inconsistent with the Constitution and laws ofthis State. The marshal shall give such bond for the faithful performance of his duties as the city council may require. He shall receive a salary or fees of office, or both, tobe fixed by the city council. The governing body ofany city or town having less than five thousand inhabitants according tothe preceding Federal census, may by an ordinance, dispense with the office of marshal, and at the same time by such ordinance confer the duties ofsaid o,ffice upon any peace officer ofthe county, but no marshal elected by the people shall bc removed from his office under the provisions ofthis article. (Emphasis supplied.) p.3106..

The Honorable Eugene Russell - page 2 (H-727)

According tothe 1970federal census Bertram is a city ofless than 5,000 inhabitants and we assume that its acts abolishing the office of city marshal and conferring duties upon the deputy sheriff were regularly evidenced byformal ordinance. g Attorney General Opinion H-296 (1974). Nevertheless, we are ofthe opinion that the doctrine ofincompatibility would prevent any active deputy sheriff from assuming the duties of city marshal unless the sheriff has himself assumed such duties and authorized the deputy toact for him in discharging them. InAttorney General Opinion O-1263 (1939), the office ofdeputy sheriff was held incompatible with the receipt by the deputy sheriff ofa commission as aSpecial Ranger. Itwas there said:

A deputy sheriff is subject to the orders ofthe sheriff.

. .. He necessarily owes his allegiance tothe sheriff.

. . A Special Ranger is subject tothe orders ofthe Department of Public Safety and ofthe Governor. Itis easy to contemplate that

### at times there might be a conflict between these respective departments of government. Ifthe Department ofPublic Safety should want the Special Ranger todo a certain act in a certain way within the county where he serves as deputy sheriff, and the sheriff should desire it **done** in adifferent manner, the authority of the two would conflict. We think the same analysis could be applied topossible conflicts arising from the authority ofthe Bertram City Council and the Burnet County sheriff and we thus feel compelled toadvise that the two offices would probably be held to be incompatible and could not be held bythe same person. Attorney General Opinion H-117 (1973); Letter Advisory No. 65 (1973). See al80 Attorney General Opinions C-661 (1966) and O-1263 (1939); Letter Advisory No. 114(1975). Incompatibility is an impediment different and separate from that which prevents the simultaneous holding oftwo offices of emolument. The cases of Torno v. Hochstetler. 221S.W. 623 (Tex. Civ. App. -- San Antonio 1920, nowrit) and&win v. State, 177S.W. 2d 970 (Tex. Crim.App. 1944) addressed the latter problem.

p. 3107The Honorable Eugene Russell - page 3 (H-727)

Because we answer your question in the negative upon grounds of legal incompatibility, it is unnecessary to discuss article 16, section 40 of the Constitution, as amended in 1972, or other laws. SUMMARY Lfhis principal, the sheriff, has nothimself assumed theduties of city marshal pursuant tovalid statutory designation, and authorized the deputy toact for him, a deputy sheriff is not statutorily authorized toperform or to be paid for performing the duties ofa city marshal. Very truly you s,

Attorney General of Texas

C. ROBERT HEATH, Chairman Opinion Committee jwb

p.3108