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 qualified and 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 Department is in part as follows: 

ltMay a persons who is the duly qualified and acting 

city marshal of an Incorporated town, who receives 

compensation from 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 

compensation from the county for.such services as 

deputy sheriff?" 

Section 40 of Article 16 of the State Constitctlon provides 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 therein means pecuniary 

proceeds, gain or advantage, 34 Tex. Jur. 343, Sec. 17. 

The office of policeman of an incorporated city and 

Deputy Sheriff are not included with th e 

mentioned in the constitutional provisions. 

scoring ours) 
r . 

Hon. John C. Marburger, Page 2, V-70 

The Court went on to say: 

"(2) A policeman of an incorporated city 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 

Clayton v. 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 following are 'peace officers': the sheriff and 

his deputies, constable, the marshal or policeman of 

an incorporated town or city, the officers, non-commlssloned officers and privates of the State ranger force, 

and any private parson especially appolnted.to execute 

criminal process. 

In the above.clted case, the Court had this to say: 

"Compensation being authorized by lav to. be paid for 

services rendered by policemen and,deputies sheriff 

renders such offices those of emolument, under the 

provisions of the Constitution mentioned. Hence the 

named officers could not at the same time be both 

policemen and deputies sheriff de jure or de faoto." 

Article 999, V.A.C.S., prescribes the 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 suppression of crime and arrest of offenders, he 

shall have and execute like power, authority and 

jurisdiction as the sheriff. . . He shall receive a 

salary or fees of office, or both, to be.flxed by the 

city council. The governing body of any city or town 

having less than three thou'sand Inhabitants according 

to the preceding Federal census, may by an ordinance, 

dispense with the off1c.e of marshal, and at the same 

time by such ordinance confer 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 provisions of 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 Incorporated town of Sinton, had 

duly qualified and acted as such, he ceased to be and 

vacated his office of constable and 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 provisions of ihe Constitution, the 

statutes and the Court decisions of this State, it is the 

opinion of this Department that the duly qualified and acting 

city marshal of an Incorporated town, 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 compinaatlon from tke county for such 

services as deputy sheriff. 

SUMMARY 

A person may not legally serve as city marshal of an 

Incorporated town and deputy sheriff bf the county at 

the same time, receiving compensation therefor. 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