Case Information
*1 The Attorrwy General of Texas April 24, 1986 JIM MATTOX
Attorney General
Supreme [51214752501] Telex Telecoow Austin. P. 0. BOX 12548 9101874.1367 TX. 7871 Court Budding 512M75.0266 l- 2548 Ronorable Gerald \I. Schmidt County Courthouse Gillespie County I&torney Fredericksburg. Texas 78624 Opinion No. .JM-$85 RS: Whether an individual may serve simultaneously as con- stable and jailer 714 JaCkSO”. Dallas. 2141742.8944 TX. 75202-4506 su:re [700]
gear Ur. Schmidt: at the Gillespie C:ounty jail became a constable in Gillespie County. You inform us that an individual who had been working as d jailer You ask whether 'Texas 1aG prohibits him from holdicg both positicrs 4824 Alberta Ave.. Sude 1.50 simultaneously. El Paso. TX. 79905.2793 9151533.3484 You advise us that the Individual has worked as a jailer and has
not been made a deputy sheriff. Although you do not explain exactly what his duties are as jailer, we assume that you use the term -‘Wl Texas. Suite 700 ,sto”. TX. 77002-3111 "jailer" ss it is used in article 5116;V.T.C.S.. which desciibes a I 13/223-5886 jailer as someone who is ia charge of a county jail but under rhe
supervision. and control of the sheriff. a06 Broadway. LubboCk, TX. 79401.3479 SU!S [312] We find nothing in Texas law that prohibits, as a matter of Lx, SO6/747-5238 an individual fxm serving simultaneously as a constable and zs z
:ailer. 4309 N. Tenth. Suile McAllan. 5121682-4547 TX. 78501.1685 [8] holding prevents .one person from holding more than one "civil office The prohibition in the Texas Constitution against dual office
of emolument" at one time. Tex. Const., art. XVI. 540. The courts 200 Main Plaza. Suite San Antonio. [51212254191] Aflirmative An Equal Opportunity/ Action TX. 78205.2797 Employer [400] have held that 2. person holds a "civil office" for purposes of that benefit of the rublic ar.d is larerlv indauendent of others' control. provision if he wrercises any sovereign function of government for the Ruiz - Beaumont 1965, WI hit rt zf'd n.r.e.); Aldine Independent School District v. Stanch, 280 S.W.Zd 578, 583 (Tex. 1955). A constable is 1976, no writ); xilley v. Rpgers, 405 S.W.2d 220, 224 (Tex. Civ. Lpp. State, iA0 S.WiZd 809. Bil '(Tex. Civ. App. - Corpus Christ1 V.
a civil officer of emolument. Attorney General Opinion M-45 (196SI. A jailer is not a civil officer of emolument because he is completely under the contrcl of a sheriff. Thus, the constitutiocsl prohibition against dual office holding does not preclude a constable from workicg as a jailer.
The common law doctrine of incompatibility prohibits one person from occupying pilo offices when one office may "thereby impose its *2 Honorable Gerald W. Schmidt - Page 2 (m-485) on the other or subject it to control in SOM other %a?." policies
Attorney General Opinions; JM-129. JM-133 (198s); see Thomas v. Abernathy Counry Line Indewndeat School District. 29Os.w. 152 (Tex. Coum'r~ App. 1927. holdin approved); _ State ea rel. Brmnan V. Martic!, St S.W.Zd 815, 817 (Tur. C:.v. App. - San Antonio 1932. no writ).
A sheriff has a statrsory right of control over the jail in his county and over the jaile,cs he employs. Da la Garza V. State, 579 S.W.Zd 220 (Tax. Crim. App. 1979); V.T.C.S. art. 5116. Consequently, once a constable brings a Prisoner to the county jail, the constable loses jurisdiction over that prisoner. Attorney General Opinion Q-1548 (1952). Thus, the ~control a sheriff exercises over a jailer does not invade an area in which the jailer aiso has powers and duties as a constable and the TVO offices arc therefore not necessarily incompatlblc. As the tour': said In State ax rel. Brennan v. Martin: -
The duties of the two offices are wholly un- related, are in no manner inconsistent, are never in conflict. Neither officer is accountable to the other, nor under bis dominion. Yeither is subordinate to the other, nor has any power or right to interfwe with the other in the perfor- mance of any duty. The offices are therefore not inconsistent or incompatible. . . .
51 S.WiZd 815 at 817. AlI:hough we cannot conc?clc chat the FCsfti0n-c cf constable ar.d jailer are legally incoapstiblc, our cpinlon does zct preclude the possibility chat a particular jaiier's duties would be incompatible with the off,lce cf constable, as a matter of fact. S.St - Attorney General Opinion Mh'-415 (1981).
Finally, none of tte information you have given us suggests a conflict of inl:erest under article ?eeb, V.T.C.S., or a either violation of any other Texas law.
SUMMARY The constitw::tonal ban on dual office holding does not prohibit someone from serving simul- taneously as a wnstable and a jailer. The common lav doctrine of incompatibility does not, as a matter of law, Irohibit such a situation.
.I ZM MATTCX Attorney General of Texas *3 Ronorable Gerald W. Schmi'it - Page 3 (341-485)
JACK BIGSTOWER
First Assistant Attorney ;eneral
MARY KELLER
Executive Assistant Attornsy GeEera
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIE;
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistzrt Attorney Cereral