PRICE DANIEL Au- il. TlKxAts **T”RNtY GP.NERAL March 6, 1947

Hon. John C. Marburger County Attorney Fayette County LaGrange,Texas ,Opinion V-70 Re: May a person who is the duly qualifiedand acting city mar3hal of an lncorporated town also be appointed as deputy sheriff? Dear Sir: Your letter of January.30,1947, In which you requested the opinion of this Departmentis in part as follows: ltMay a persons

who is the duly qualifiedand acting city marshal of an Incorporatedtown, who receives compensationfrom said city for said office, also be appointed and serve as deputy sheriff of the same county in which said city is located and receive compensationfrom the county for.such services as deputy sheriff?" Section 40 of Article 16 of the State Constitctlonprovides in part that: "No person shall hold or exercise at the same time more than one civil office of emolument,except that of Justice of the Peace, County Commissioner, Notary Public and Postmaster." In the case of Irvin vs. State, 177 S.‘vJ. 2d :>7S,

the Court had to decide whether or not the same person could be a policeman and special deputy sheriff at the same time and quoted the above Article of the Constitution,and the Court then went on to say: "The term !emolument' as used thereinmeans pecuniary proceeds,gain or advantage,34 Tex. Jur. 343, Sec. 17. The office of policemanof an incorporatedcity and Deputy Sheriff are not includedwith th e mentioned in the constitutional provisions. scoring ours)r
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Hon. John C. Marburger, Page 2, V-70

The Court went on to say: "(2) A policeman of an incorporatedcity is an officer. M Do d tit f Da11 69s.w. 2d "175yix zarte !&ton T Civ. App. yE'Te?'Cr 161 S.W. 115; Yett v. Cook, 116 $ex. 20~5, 28i i:Wt7b37; Art. 36, V.A.C.C.P.;so also is a deputy she;iff an Claytonv. State, 21 'rex. App. 343 17 S W 6. Murray v. State, 125 Tex. Cr. R. 252, 67's:~. 2b 274; and Art. 36, V.A.C.C.P." (Underscoring ours) Article 36, V.A.C.C.P.,provides that: "The followingare 'peaceofficers':the sheriff and his deputies,constable,the marshal or policemanof an incorporatedtown or city, the officers,non-commlssloned officersand privates of the State ranger force, and any private parson especiallyappolnted.toexecute criminalprocess. In the above.cltedcase, the Court had this to say: "Compensation

being authorizedby lav to. be paid for services renderedby policemenand,deputiessheriff renders such offices those of emolument,under the provisionsof the Constitution mentioned. Hence the named officers could not at the same time be both policemenand deputies sheriff de jure or de faoto." Article 999, V.A.C.S.,prescribesthe powers and duties of a city marshal and.speciflcally provides,among other things, as Sollowe:

. . . he shall have like power with the sheriff of the county to execute warrants;
. . . In the prevention and suppressionof crime and arrest of offenders,he shall have and execute like power, authorityand jurisdiction

as the sheriff.

. . He shall receive a salary or fees of office, or both, to be.flxedby the city council. The governingbody of any city or town having less than three thou'sand Inhabitants

according to the preceding Federal census,may by an ordinance, dispensewith the off1c.e of marshal, and at the same time by such ordinanceconfer the duties of said office upon any peace officer of the county,but no marshal elected by the people shall be remove! from his office under the provisionsof this article..

1.

Hon. J&n C. Marburger, Page 3, v-70

In the case of Torn0 vs. Hochstetler,221 S.W. 623, Justice Cobb3 had this to say: "If the offic,er

who levied the execution in this case, the said Gentry, while being the legal and duly quallfled constable,was subsequently appointed town marshal of the legally Incorporatedtown of Sinton, had duly qualifiedand acted as such, he ceased to be and vacated his office of constableand became the town marshal, an office wholly Incompatible with that of constable,and would have no power to execute writs of execution such as was done In this case. See article 16, 8 40 of the Constitution by Harris, and cases cited; State v. Brinkerhoff,66 Tex. 45, 17 S.W. log; Alsup v. Jordan, 69 Tex. 303 6 S.W. 831, 5 Am St. Rep. 53," In view of the foregolng provisionsof ihe Constitution,the statutesand the Court decisionsof this State, it is the opinion of this Departmentthat the duly qualifiedand acting city marshal of an Incorporatedtown, who receives compensation from said city for said office,may not also be appointed and serve as deputy sheriff of the same county In which said city is located arid

receive compinaatlonfrom tke county for such servicesas deputy sheriff. SUMMARY A person may not legally serve as city marshal of an Incorporatedtown and deputy sheriffbf the county at the same time, receivingcompensationtherefor. Art. 16, Sec. 40 of State Constitution; Torn0 v3. Hochstetler, 221 S.W. 723; Irvin vs. State, 177 S.W. 'cd 90; 34 Tex. Jur. 349. Very truly yours APPROVED ATTORNEY GE?JErlAL OF TEXAS s/ Price IZaniel 3/ Bruce Alien ATTORNEYGENERAL BY BA:djm;jrb/cge Bruce Allen Approved Opn.Commlttee, Assistant By BWB, Chairman