No. V-0070 (1947).

• Case Date: March 06, 1947
• Court: Texas

Texas Attorney General Opinions 1947. No. V-0070 (1947). 1March 6, 1947Hon. John C. MarburgerCounty AttorneyFayette CountyLaGrange, TexasOpinion No. V-70Re: May a person who is the duly qualified and acting city marshal of an incorporated town also be appointed 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:

"May a person who is the duly qualified and acting city marshal of an incorporated town, who receives compensation from 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 compensation from the county for such services as deputy sheriff?"

Section 40 of Article 16 of the State Constitution provides 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.W. 2d 970, 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. 349, Sec. 17. The office of policeman of an incorporated city and Deputy Sheriff are not included with the exceptions mentioned in the constitutional provisions." (Underscoring ours)

2The Court went on to say:

"(2) A policeman of an incorporated city is an officer. McDonald v. City of Dallas, Tex. Civ. App. 69 S.W. 2d 175; Ex parte Preston, 72 Tex. Cr. R. 17, 161 S.W. 115; Yett v. Cook, 116 Tex. 205, 281 N.W. 837; Art. 36, V.A.C.C.P.; so also is a deputy sheriff an Clayton v. State, 21 Tex. App. 343, 17 S.W. 261; Murray v. State, 125 Tex. Cr. R. 252, 67 S.W. 2d 274; and Art. 36, V.A.C.C.P." (Underscoring ours)

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 incorporated town or city, the officers, non-commissioned officers and privates of the State ranger force, and any private person especially appointed to execute criminal process."

In the above cited case, the Court had this to say:

"Compensation being

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