TEE ATSORNEY GENERAL 

ow 7ITExA.s 

~~r-11 19, 1962 

Honorable J. Albert Dickie 

County Attorney 

Coryell County 

Gatesvllle, Texas 

Dear Mr. Dlckie: 

Opinion No. ~-1316 

Re: The legality of one 

person being a constable 

and:.also serving as an 

alderman of an incorporated city. 

You have requested an opinion relative to the legality of one person being a constable and also serving as an 

alderman of an incorporated city. Your specific questions 

are as follows: 

"Can a constable receiving emolument 

for that offlce also serve as an alderman 

in an Incorporated city located in the same 

precinct where he serves as constable, if 

he does not receive any emolument for 

serving as such alderman? 

"Is the office of constable and 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 constable receives 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 constable after 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 shall hold or exercise, at 

the same time more than one civil offi.ce of 

emolument, . . .n 

' 
n .J 

Hsnorable J. Albert Dlckie, page 2 (~~~~-13.6) 

Dual office holding 1s speciflcally forbidden by 

Section 40 of Article XVI of the Texas Constitution where 

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~accounting officers of the 

State are forbidden to issue or pay a warrant upon the 

Treasury for the payment of salary or compensation to a 

civil officer, who, at the same time, holds another office 

of honor, trust, or profit under the United States or the 

State of Texas. 

778 

cle 

the 

In Graves v. M. Griffin OlNeil and Sons, 189 S.W. 

(Clv.App. 1916) th C t h Id th t Section $0 of ArtlXVI of the Constitu&.o?~f TExas w:s not applicable to 

office of alderman of the City of Tioga, stating: 

” ,Thls contention Is based upon 

that pGo&ion of our Constitution (section 

40, article 1.6) which prohibits any person 

from holding in this state at the same time 

more than one civil office of emolument. 

The answer to this contention, If there be 

are 

In answer to your first question, therefore, you 

advised that the constitutional prohibition against the 

holding of more than one office of emolument is $nappllcable 

under the facts stated In your first questton foti the reason 

that no salary for alderman is provided by statute or city 

ordinance. Likewise, Section 33 of Article XVI is not violated 

for the reason that neither a constable nor an alderman is to 

be paid out of the State Treasu 

ions V-242 (1947), and v-883 (1gTGj. 

Attorney General's OpinIt is also a fundamental rule of law that one person may not hold at one time two offices the duties of which 

are Incompatible, and this rule applies whether the office is 

named In the exceptions contained in Article XVI, Section 40. 

Attorney General's Opinion V-242 (1947). 
. . 

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

We have considered the respective duties 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 question you are advised that the office of constable 

and the office of city alderman are not incompatible. 

In answer to your 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 constitutes an office of emolument. In 

such event Section 40 of Article XVI would prohibit one person from holding both offices, even though the individual lnvolved is not In fact paid the emolument provided for by 

ordinance. Therefore, in answer to your third question, If 

emolument is provided for by ordinance for a city alderman 

Section 40 of Article XVI of the Constitution of Texas will 

prohibit one person from holding both 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 provided by ordinance Section 40 oft 

Article XVI of the Constitution will prohibit one 

person from holding both offices ate the 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 

Grundy Williams 

Bob Shannon 

Frank Booth 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.