GENERAL 

### TEE ATSORNEY

ow 7ITExA.s

~~r-11 19, 1962

Honorable J. Albert Dickie County Attorney Coryell County Gatesvllle, Texas

Dear Mr. Dlckie: OpinionNo. ~-1316
Re: The legality of one person being a constable and:.alsoserving as an alderman of an incorporated city.
You have requestedan opinion relative to the legality of one personbeing a constableand also serving as an alderman of an incorporatedcity. Your specific questions are as follows:

"Cana constablereceiving emolument for that offlce also serve as an alderman in an Incorporatedcity located in the same precinct where he servesas constable, if he does not receive any emolumentfor serving as such alderman?
"Is the office of constableand city alderman incompatible,making the question of serving in both capacities unconstItutional, forcing a ~reslgnatlon of the 

### former upon election to the latter, regardless of the question of emolument? If the answer to this question is that they are incompatible, then please ignore the next question. "Where the constablereceives emolu- ~ment for that office and even though emolument is provided for by ordinance for city alderman, such alderman is not In fact paid such emolument, can the constable retain the office of constableafter elected alderman, If he does not receive emolument for the office of alderman?" Section 40 of Article XVI of the Constitution of Texas reads In part:

"No person shallhold or exercise, at the same time more than one civil offi.ce of emolument,

. . .n 'n .J

Hsnorable J. AlbertDlckie,page 2 (~~~~-13.6)

Dual officeholding 1s speciflcallyforbiddenby Section 40 of ArticleXVI of the Texas Constitutionwhere both offices are civil offices of emolument. Dual office holding is forbidden to an extent, at least,by Section 33 of Article XVI wherein the~accountingofficers of the State are forbidden to issue or pay a warrant upon the Treasury for the paymentof salaryor compensation to a civil officer,who, at the same time,holds another office of honor, trust, or profitunder theUnited States or the State of Texas.


### 778 cle the In Graves v. M. Griffin OlNeiland Sons, 189 S.W. (Clv.App.1916) th C t h Id th t Section $0 of ArtlXVI of the Constitu&.o?~f TExasw:s not applicable to office of alderman of the City of Tioga, stating:

” ,ThlscontentionIs based upon thatpGo&ion of our Constitution (section 40, article 1.6) which prohibitsany person from holding in this state at the same time more than one civil office of emolument. The answer to this contention,If therebe

are In answer to your first question, therefore,you advised that the constitutionalprohibition against the holding of more than one office of emolument is $nappllcable under the facts stated In your first questton fotithe reason thatno salary for alderman is providedby statute or city ordinance. Likewise, Section 33 of Article XVI is not violated for the reason that neithera constablenor an alderman is to be paid out of the State Treasu ionsV-242 (1947),andv-883 (1gTGj.Attorney General's OpinIt is also a fundamentalrule of law that one person may not hold at one time two offices the duties of which are Incompatible,and this rule applieswhether the office is named In the exceptionscontained inArticle XVI, Section 40. AttorneyGeneral's OpinionV-242 (1947).. .

Honorable J. Albert Dickle,page 3 (WW-1316)

We have consideredthe respectiveduties encumbent upon a constable and an alderman of an Incorporated city and we can conceive of no basis upon which it may be said that the offlces are Incompatible;therefore, In answer to your second questionyou are advised that the office of constable and the office of city alderman are not incompatible.

In answer toyour third question, if emolument 1s provided for by ordinance for the city alderman such office would then constitute an office of emolument the same as the office of constable constitutesan office of emolument. In such event Section 40 of ArticleXVI would prohibit one person from holding both offices, even though the individual lnvolved is not In fact paid the emolumentprovided for by ordinance. Therefore, in answer toyour third question, If emolument is provided for by ordinancefor a city alderman Section 40 of ArticleXVI of the Constitution of Texas will prohibit one person from holdingboth offices. SUMM~ARY One person may~hold at the same time both the offloes of constable and city alderman if no emolument is provided for the office of city alderman by statute or ordinance. The office of alderman and the office of constable are not incompatible. In the event emolument is providedby ordinance Section 40 oft Article XVI of the Constitutionwill prohibit one person from holding both offices atethe same time, ..'. even though the person attempting to hold such offices 1s not In fact paid the emolument provided by ordinance.
Yours very truly,
WILL WILSON Attorney General of Texas

JR:wb:zt:mkh APPROVED: OPINION COMMITTEE ohn Reeves

W. V. Geppert, Chairman GrundyWilliams Bob Shannon Frank Booth REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.