The Honorable Eugene Russell 

County Attorney a 

Burn& County 

Burn&, Texas 78611 

Opinion No, H-727 

Re: May a.small city pay a deputy 

sheriff to perform the duties of a 

town marshal . 

Dear Mr. Russell: 

You advise that the City of Bertram has by ordinance abolished the 

office of City Marahal and conferred the duties of the office upon a named 

deputy sheriff of Burn& County and pays that individual a salary in addition 

to that which he receives from the county. You ask if the deputy may 

perform, and be paid for performing, the city marshal duties while also 

receiving pay from Burnet County as a deputy sheriff. 

Article 999, V. T. C. S. , provides: 

The marshal of the 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. . . . In the prevention and suppression 

of crime and arrest of offenders, he shall have, possess 

and execute like power, authority, and jurisdiction 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 of this 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, to be fixed 

by the city council. The governing body of any city or 

town having less than five thousand inhabitants according to the preceding Federal census, may by an ordinance, 

dispense with the office of marshal, and at the same time 

by such ordinance confer the duties of said o,ffice upon any 

peace officer of the county, but no marshal elected by the 

people shall bc removed from his office under the provisions 

of this article. (Emphasis supplied.) 

p. 3106 
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The Honorable Eugene Russell - page 2 (H-727) 

According to the 1970 federal census Bertram is a city of less 

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 by formal ordinance. g Attorney General Opinion H-296 (1974). 

Nevertheless, we are of the opinion that the doctrine of incompatibility 

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 to act for him in discharging them. 

In Attorney General Opinion O-1263 (1939), the office of deputy sheriff 

was held incompatible with the receipt by the deputy sheriff of a commission 

as a Special Ranger. It was there said: 

A deputy sheriff is subject to the orders of the sheriff. . . . 

He necessarily owes his allegiance to the sheriff. . . A 

Special Ranger is subject to the orders of the Department 

of Public Safety and of the Governor. It is easy to contemplate that at times there might be a conflict between these 

respective departments of government. If the Department 

of Public Safety should want the Special Ranger to do a 

certain act in a certain way within the county where he 

serves as deputy sheriff, and the sheriff should desire 

it done in a different manner, the authority of the two 

would conflict. 

We think the same analysis could be applied to possible conflicts 

arising from the authority of the Bertram City Council and the Burnet 

County sheriff and we thus feel compelled to advise that the two offices 

would probably be held to be incompatible and could not be held by the 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 of two offices of emolument. The 

cases of Torno v. Hochstetler. 221 S. W. 623 (Tex. Civ. App. -- San 

Antonio 1920, no writ) and &win v. State, 177 S. W. 2d 970 (Tex. Crim.App. 

1944) addressed the latter problem. 

p. 3107 
The 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 

Lf his principal, the sheriff, has not himself 

assumed the duties of city marshal pursuant 

to valid statutory designation, and authorized 

the deputy to act for him, a deputy sheriff is 

not statutorily authorized to perform or to be 

paid for performing the duties of a city marshal. 

Very truly you s, 

Attorney General of Texas 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jwb 

p. 3108