Untitled Texas Attorney General Opinion

Hon. Edward B. Stewart Opinion yo .’V-1370 County Attorney Yaiingcouilt~ Rer Legality of payI* 6 con- Graham, Texas . stable’s Sialarg whlle’he Ia temporarily-be%@ p&Id as-a cltg policetin, ‘tie- placing a polloeman who Is Ill. Dear Sir: You have requested an opinion on the following quea- tiona: n1. 1a”the acceptande by a conattibleof a tetiporarypaid position aa’& pOlIcemaiiof’an ihcorp&ated city, td’replace a regular police- . man wh6 l$ 111, such an abandonment of’the former posltf’iin CLsto preclude tlie coi.antJr treasurer from paying .him the conetable’s salary? “2 . If the”county treasurer 1s unauthorized to pay’such salary during the existence of such temporary employment bjithe city, Yoiildhe be authorized to resume paging such salary upon the termlilatlonof auoh temporary employment by the city and before the re-election of the constable to his office a8 constable?” Section 40 of Article XVI of the Constitution of Texas provides in part: “?ioperson aha ho12 or exerolae, at the aame time, Ofrl of emolu- ment . .’ . not appllcabi.5 e .” A pollaeman of an .lnoorporated oity ie an ciffibdti yittiiii the .., msanlng of the above,quoted cbnstitutlotial proi+IMori.’ ‘w v. State; 177 S;W; 2&“970, (Tex. Ci9.m.1944). LIkdtia&;‘a con- .-- stable id.‘an. ofi’iketi ‘tilthihth6’meafiiha”M’t~he’ above auoted c&ii- atitutiorial provlsldn. Torho ‘v,“Rochs&Fler 221 S-;W:~623’(Tex. Clv.’App. 1923). In the It vaa &d f;h&tSecti& 40&.bi’ ~hi?t’ldle XVI df the 8% on8 itutibn’of aaOe‘ TexCiaprotiiibited”bne”’ person iron being at the name time a policeman of an Incorporated . Hon. Edward B. Stewart,,page 2 (v-1370) c'ltyand a deputy sheriff'. In the Torno case it was stated at page 624: "If the officer who levied the execution in this case, the said Gentry, whiie being the legal and duly qualified constable, was subsequently appointed town marshal of the legally i;'lcorpoFat@ town of Slntcn, had duly quvil,f'ledsnd ected as such, he ceased to be and vtlcstedhis off?ce of constable and became the .townmarshal, an office wholly incompatible wfth ,thstof constable, and wbuld"have no power to exttcute.wrl.tsof execution such as was done in this case. See Artlcie 16, 8 40 of the Constitution by Hnrrls, end 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." .L Therefore, it Is our opinion that Section 40 of Article XVI of the Constitution of'Texas prohlblts a consta& from being at the same time a policeman of an incorporated city. Apart from the constltutlonal prohibition contained.in' Article XVI, Section 40, It is aiso a rule of common law that 6 person canhot hold two offices where the duties of the offlces~ are Indompatlble. State v. Brinkerhoff, 66 Tex. 45, 17 S.W. 109 (18%) ; Thomas v. Abernathy County Llne IndependentSchooI-Dlst., 290 S.U. 152 (Tex. Comm, App. 1927)* Irwin il.Stat& suora, held that-the office of town marshal is "wholly Incompatible with that of constable." We think it foliows from that holding thet the position of city poll.cemsnis 1.ncnmpatiblewl.ththe office of constRbie. In Pruitt v Y 'GianRcm~ Ird. School_Dlst. No. i, I.26Tex. 45, 84 S.W. 2d 1.004 100 A,L;R. 11-58(1935), the Supreme Court stated, st 84 S.W. id 1007: "The text, 34 Tex..Zur. 354, Sec. 19, sum- marlzee the rule, thus: 'H6vinu electer~to ac- cent and qualify for the second office, ipso facto and aa a matter of law, he vacates the first office. This 1s true, where both offices are pieces of emolument, regardless of whether they are incompatIble, and if they are incompatible there Is a vacation of the first office regardless of whether both are offices of emolument within the meaning of the ConstItutIun. In suhh dlrcum- stances the constItutIonal,provision that ail of- f'lcersshall continue to perform the duties of their offlceo until a successor has been qualified does not apply..'" - . . - Hon. Edward B. Stewart, page 3 N-1370) In an annotatlon to this case, 100 A.L,R. at 1164, It is stated: "It Is a well-settled rul&af the.common law that a person cannot at one and the same timi, rightfully hold twb offices which are Incompatible, and thus, when he accepts a~uolntment".tothe second office, -which Fs lncotipatt.ble. and:auaZlfl.es.he vacate8 , or by implication reslp;ns,the first office." Th6rePore, we agree with your ConclusSon thkt'when the constsble accepted the appointment as R pnl.:cemati of an lncor- poWted city he Vacated his office of constable aiidthe ciziunty treasurer was unauthorized to psy him any 3Alary as'conktable after he aasumed ttiedutlks r,fc1t.rpoliceman. We are k~3uniing ‘Znthl'sopinion that the appointment to the latter office wds in accordance.wlth the 'charterand ordinances of the city for which he served as policeman. _ The person in'queation can resume the office'& con- ktkble only by being appointed to fill the ‘vacancy heretofdie created or by being elected to the office at the next general election. SUNMARY One person cannot hold or exercise at the same time the offlce of constable and the offIce of city policeman. 'When a cor8stab'l.eaccepts an appoinEment AS a policeman of an incorporated city, he vacates the izoimty treasurer 1s not his former office, ar.lB. authorized to paJihim tinysalary aa’coastable f’rom the date of his acceptance of the letter office. Sec.,40, Art. XV Tsx. Const.' 177 S.W. 26 970 t6ex. Crlti. 1944) t 221 S.W. 623 (Tex. Clv, #pp. 192 Rose Ind. School Dlst. Nd t 12 a 1004, 100 A.L.R. 1158 35) ,.. APPROVED: Yours very truly, J.C. Davis',Jr; County Affairs Dlvislon PRICE DANIEL Attorney Oenarel Jesse P. Luton. Jr. Reviewing Asa i&ant Charles D, Mathews By l,%lohnReeves First AsaI.stant John~R6evos Asalstflnt JRamh:wc