Au-    il.   TlKxAts
PRICE   DANIEL
**T”RNtY GP.NERAL


                            March 6, 1947


     Hon. John C. Marburger               ,OpinionV-70
     County Attorney
     Fayette County                       Re: May a person who is the
     LaGrange, Texas                          duly qualified and acting
                                              city mar3hal of an lncor-
                                              porated town also be ap-
                                              pointed 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:
           ltMaya personswho is the duly qualified and 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 therein means pecuniary
           proceeds, gain or advantage,34 Tex. Jur. 343, Sec. 17.
           The office of policeman of an incorporatedcity and
           Deputy Sheriff are not included with the
           mentioned in the constitutionalprovisions.
           scoring ours)
r                                                                  .




    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    T    Civ. App.
        69s.w. 2d "175yix zarte !&ton     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." (Underscoringours)
    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 incorporatedtown or city, the officers, non-commls-
         sloned officers and privates of the State ranger force,
         and any private parson especiallyappolnted.toexecute
         criminal process.
    In the above.cltedcase, the Court had this to say:
         "Compensationbeing authorized by lav to.be paid for
         services rendered by policemen and,deputiessheriff
         renders such offices those of emolument,under the
         provisions of the Constitutionmentioned. 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.speciflcallyprovides, 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, authority and
         jurisdictionas 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'sandInhabitantsaccording
         to the preceding Federal census, may by an ordinance,
         dispense with the off1c.eof 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,erwho levied the execution in this case,
                the said Gentry, while being the legal and duly
                quallfled constable, was subsequentlyappointed town
                marshal of the legally Incorporatedtown of Sinton, had
                duly qualified and acted as such, he ceased to be and
                vacated his office of constable and became the town mar-
                shal, an office wholly Incompatiblewith 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 Constitutionby 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 foregolngprovisions 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 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 aridreceive compinaatlonfrom tke county for such
         services as deputy sheriff.
                                     SUMMARY
                A person may not legally serve as city marshal of an
                Incorporatedtown and deputy sheriff bf the county at
                the same time, receiving compensationtherefor. Art. 16,
                Sec. 40 of State Constitution;Torn0 v3. Hochstetler,
                221 S.W. 723; Irvin vs. State, 177 S.W. 'cd90; 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