The Honorable Eugene Russell Opinion No, H-727
County Attorney a
Burn& County Re: May a.small city pay a deputy
Burn&, Texas 78611 sheriff to perform the duties of a
town marshal .
Dear Mr. Russell:
You advise that the City of Bertram has by ordinance abolished the
office of City Marahal and conferred the duties of the office upon a named
deputy sheriff of Burn& County and pays that individual a salary in addition
to that which he receives from the county. You ask if the deputy may
perform, and be paid for performing, the city marshal duties while also
receiving pay from Burnet County as a deputy sheriff.
Article 999, V. T. C. S. , provides:
The marshal of the city shall be ex officio chief of
police, and may appoint one or more deputies which
appointment shall only be valid upon the approval of
the city council. . . . In the prevention and suppression
of crime and arrest of offenders, he shall have, possess
and execute like power, authority, and jurisdiction as the
sheriff. He shall perform such other duties and possess
such other powers and authority as the city council may
by ordinance require and confer, not inconsistent with
the Constitution and laws of this State. The marshal
shall give such bond for the faithful performance of
his duties as the city council may require. He shall
receive a salary or fees of office, or both, to be fixed
by the city council. The governing body of any city or
town having less than five thousand inhabitants accord-
ing to the preceding Federal census, may by an ordinance,
dispense with the office of marshal, and at the same time
by such ordinance confer the duties of said o,ffice upon any
peace officer of the county, but no marshal elected by the
people shall bc removed from his office under the provisions
of this article. (Emphasis supplied.)
p. 3106
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The Honorable Eugene Russell - page 2 (H-727)
According to the 1970 federal census Bertram is a city of less
than 5, 000 inhabitants and we assume that its acts abolishing the office of
city marshal and conferring duties upon the deputy sheriff were regularly
evidenced by formal ordinance. g Attorney General Opinion H-296 (1974).
Nevertheless, we are of the opinion that the doctrine of incompatibility
would prevent any active deputy sheriff from assuming the duties of city
marshal unless the sheriff has himself assumed such duties and authorized
the deputy to act for him in discharging them.
In Attorney General Opinion O-1263 (1939), the office of deputy sheriff
was held incompatible with the receipt by the deputy sheriff of a commission
as a Special Ranger. It was there said:
A deputy sheriff is subject to the orders of the sheriff. . . .
He necessarily owes his allegiance to the sheriff. . . A
Special Ranger is subject to the orders of the Department
of Public Safety and of the Governor. It is easy to contem-
plate that at times there might be a conflict between these
respective departments of government. If the Department
of Public Safety should want the Special Ranger to do a
certain act in a certain way within the county where he
serves as deputy sheriff, and the sheriff should desire
it done in a different manner, the authority of the two
would conflict.
We think the same analysis could be applied to possible conflicts
arising from the authority of the Bertram City Council and the Burnet
County sheriff and we thus feel compelled to advise that the two offices
would probably be held to be incompatible and could not be held by the same
person. Attorney General Opinion H-117 (1973); Letter Advisory No. 65
(1973). See al80 Attorney General Opinions C-661 (1966) and O-1263 (1939);
Letter Advisory No. 114 (1975).
Incompatibility is an impediment different and separate from that
which prevents the simultaneous holding of two offices of emolument. The
cases of Torno v. Hochstetler. 221 S. W. 623 (Tex. Civ. App. -- San
Antonio 1920, no writ) and &win v. State, 177 S. W. 2d 970 (Tex. Crim.App.
1944) addressed the latter problem.
p. 3107
The Honorable Eugene Russell - page 3 (H-727)
Because we answer your question in the negative upon grounds of
legal incompatibility, it is unnecessary to discuss article 16, section 40 of
the Constitution, as amended in 1972, or other laws.
SUMMARY
Lf his principal, the sheriff, has not himself
assumed the duties of city marshal pursuant
to valid statutory designation, and authorized
the deputy to act for him, a deputy sheriff is
not statutorily authorized to perform or to be
paid for performing the duties of a city marshal.
Very truly you s,
Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
jwb
p. 3108
Untitled Texas Attorney General Opinion
Combined Opinion