                       May 18, 1989




Honorable Robert W. Post       Opinion No.   JM-1047
Dewitt County Attorney
P. 0. Box 110                  Re: Whether a justice of the
Cuero, Texas   77954           peace may also serve as a
                               jailer   (RQ-1633)

Dear Mr. Post:

     You state that the sheriff of your county is interested
in employing as a jailer an individual who is a duly elected
justice of the peace of the county.    You ask whether  this
employment would violate article XVI, section 40, of the
Texas Constitution  and whether these two positions      are
incompatible.

     We first consider whether the position    of jailer   is
incompatible with that of justice of the peace. The common
law doctrine of incompatibility bars one person from holding
two offices if the duties of the offices are inconsistent or
in conflict or if one office is subordinate to the other.
Thomas v. Abernathy Count Y Line IndeD. School Dist.,     290
S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); Rusle v.
Glen Rose Inde D . School Dist. No. 1, 50 S.W.2d 375    (Tex.
Civ. App. - Waco 1932), rev/d on other orounds sub nom.
Pruitt v. Glen Rose Indew. School Dist. No. 1, 84 S.W.2d
1004 (Tex. 1935).    One person may not occupy two offices
when one office may "thereby impose its policies     on the
other or subject it to control in some other way." Attorney
General Opinion JM-485 (1986); see Thomas, sunra; State ex
rel. Brennan v. Martin, 51 S.W.2d 815, 817 (Tex. Civ. App. -
San Antonio  1932, no writ).     See also Attorney   General
Opinions H-727 (1975); O-1263 (1939) (two law enforcement
positions held incompatible because they involve allegiance
to different superiors who may give conflicting orders).   If
an officer accepts a second position which is incompatible
with one already held, he is deemed to have resigned the
first. Thomas, suwra.

      A justice of the peace holds an office while a jailer
does not. See Tex. COnst. art. XVI, .$40; Attorney  General
Opinion JM-485 (1986). Cases and attorney general opinions




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on incompatibility  generally   refer to incompatibility    of
offices. See. e.a., Attorney General Opinions JM-485 (1986)
(jailer may serve as constable); O-174    (1939) (offices of
justice of the peace and deputy sheriff are incompatible).
Nonetheless, this doctrine has in some cases been applied to
find a public office and a public employment     incompatible.
See Ehlinaer v. Clark, 8 S.W.2d 666 (Tex. 1928); Attorney
General Opinion JM-203 (1984) at 10; Attorney General Letter
Advisory No. 114 (1975) (public employee may not hold office
which   appoints,   supervises,    or   controls    employee).
Moreover, some opinions of this office indicate in dicta
that the duties of an office can be legally       incompatible
with the duties of an employment. See Attorney         General
Opinions JM-485 (1986) (positions of constable and jailer
are not     legally  incompatible:    in   particular    cases
incompatibiity might exist as a matter of fact): MW-415
(1981) (whether positions   of deputy district      clerk and
deputy county clerk are incompatible is a question of fact);
V-1346 (1951) (office of justice of the peace          is not
incompatible with employment    as laborer in county park
division).

     After    examining the duties and responsibilities of the
jailer and    the justice of the peace in the criminal  justice
system, we    have concluded that the two positions are in-
compatible.     A review of the role of justice of the peace as
magistrate    and the jailer as the sheriff's subordinate shows
that there    are many occasions when the duties and loyalties
of the two    positions would conflict.

     A jailer is employed by the sheriff and subject to his
supervision and control in matters involving his duties as
jailer. De la Garza v. State, 579 S.W.2d 220 (Tex. Grim.
APP. 1979) ; Local Gov't Code 5 351.041.     See also Local
Gov't Code § 85.005     (employment of jail guards).     The
sheriff is a peace officer with law enforcement powers   and
duties set out by statute.     Code Crim. Proc. arts. 2.12-
2.13. The jailer is thus a subordinate of a peace officer.
A person designated as a jailer or guard of a county jail
under former article 6871, V.T.C.S., now codified as section
85.005 of the Local Government    Code, must be licensed by
the Texas Commission  on Law Enforcement Officer   Standards
and Education.  Gov't Code 5 415.051. See also Gov't Code
5 415.054 (grandfather clause).

     A justice of the peace is an elected officer who takes
the constitutional  oath of office and expressly owes his
allegiance to the constitution and laws of the United States
and Texas. Tex . Const. art. V, 5 18: id. art. XVI, § 1. He




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is a magistrate   with numerous powers and duties    in the
criminal justice system. Code Crim. Proc. art. 2.09. It is
the duty of a magistrate to issue process intended to aid in
preventing and suppressing crime and to cause the arrest of
offenders by the use of lawful means.    Id. art. 2.10.    He
also sits as an examining court to inquire into a criminal
accusation against a person and determine whether probable
cause exists to prosecute him for the offense.      Seeid.
arts. 2.11, 16.01, 16.17.

     After the examining trial, a justice of the peace is to
make an order committing the defendant to jail, discharging
him or admitting him to bail. Id. arts. 16.17, 16.20.     If
there is no safe jail in the county that carries on the
prosecution, the magistrate may commit the defendant to the
nearest safe jail in another county. Id. art. 16.18.

     There are many opportunities for the sheriff to appear
as a petitioner before the justice of the peace.      In an
instance when the justice of the peace is also the sheriff's
jailer, the individual who holds both positions would be
subject to conflicting   loyalties.   As justice, he owes
allegiance directly to the constitution and laws, as set out
in his oath of office.    As jailer, he is subject to the
sheriff's orders.

     There are also some specific areas where the jailer's
duties could conflict with the duties of the justice of the
peace as magistrate.   The jailer's personal knowledge of or
responsibility for conditions in the local jail might affect
his ability as magistrate    to reach an impartial decision
that "there is no safe jail in the county.t' &    art. 16.18.
The magistrate   might have to hold an examining         trial
involving a defendant with whom he has dealt as jailer.     In
such a case, he would    face the problem of separating    his
personal observations   as jail employee from the evidence
presented to him as judicial officer. The most significant
conflicts,   however,    arise   in   connection   with    the
magistrate's  issuance    of search    warrants  and    arrest
warrants.

     A magistrate has authority to issue search warrants in
accordance with the procedures set out in chapter 18 of the
Code of Criminal Procedure. Article 18.01 of the Code of
Criminal Procedure provides as follows:

           A 'search warrant'   is a written order,
        issued by a magistrate and directed to a
        peace officer, commanding him to search for




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        any property or thing and to seize the    same
        and bring it before such magistrate.

Id. art. 18.01(a).l

     A search warrant may not be issued unless   sufficient
facts stated in a sworn affidavit are first presented    to
satisfy the issuing magistrate that probable cause exists
for its issuance. Id. art. 18.01(b). The peace officer to
whom the warrant is directed is to take possession of the
property and bring it before the magistrate.      Id. art.
18.09. See oenerallv MW-84 (1979) (describing procedure for
issuing search warrants).

       A magistrate issues arrest warrants, defined as written
orders directed to a peace officer commanding him to arrest
a person accused of an offense against the laws of the
state. Code Crim. Proc. arts. 15.01-15.02.       See also id.
art. 18.03     (seach warrant may also order arrest).      The
person making the arrest is to take the person arrested
before a magistrate who will inform him of the rights set
out in article 15.17 of the Code of Criminal Procedure     and
admit him to bail if allowed by law. Id. arts. 15.17,
18.09.    See oenerallv Attorney General Opinion JM-151 (1984)
(describing procedures involved in taking prisoner before a
magistrate).

     The Fourth Amendment of the United States Constitution,
which is applicable to the states through the Fourteenth
Amendment, establishes  requirements  for the issuance of
warrants that are relevant to the conduct of the justice of
the peace when acting as magistrate.   The determination   of
probable cause necessary to issuing a search warrant       or
arrest warrant must be made by "a neutral and detached
magistrate instead of being judged by the officer engaged in
the often competitive  enterprise of ferretins out crime."
Johnson v. United States, 333    U.S.  10 (1948): Sharv v.
State, 677 S.W.Zd 513 (Tex. Crim. App. 1984). To be neutral



     1. A justice of the peace is not, however, among the
magistrates authorized to issue warrants pursuant to article
18.02(10) of the Code of Criminal Procedure.     Code Crim.
Proc. art. 18.01(c). Article 18.02(10) permits the issuance
of a search warrant for property constituting evidence that
a specific offense has been committed or evidence tending to
show that a particular person committed an offense.




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and detached, a magistrate  must be separate and disengaged
from law enforcement activities. Shadwick v. Citv of Tamva,
407 U.S. 345   (1972). The United States Supreme Court in-
validated a search warrant issued by the state attorney
general "who was actively in charge of the investigation and
later was to be chief prosecutor at the trial." Coolidoe v.
New Hamvshire, 403 U.S. 443, 450    (1971). In Lo-Ji Sales,
I      . New York, 442 U.S. 319 (1979), the Supreme Court
h%   :hat a town justice did not act as a neutral and
detached magistrate when he signed an open-ended warrant for
search and seizure of obscene material and then participated
with police and prosecutors      in seizing the     property.
See also Annot.,   32 L.Ed.2d 970   (1973) (law enforcement
officer, peace officer or prosecutor   does not qualify as a
neutral and detached magistrate).

     A magistrate  with a personal   financial  interest   in
issuing a warrant lacks the neutrality and detachment    that
the Fourth Amendment requires. See Connallv v. Georgia, 429
U.S. 245 (1977) (per curiam).   In Connally v. Georgia,   the
Suvreme Court found that the issuance of search warrants   bv
a justice of the peace violated the Constitution,    because
justices were not salaried but were paid a fee when a search
warrant was issued and received nothing when the warrant was
denied. The financial welfare of the justice was enhanced
by his agreement to issue a warrant, a situation which
offered 'Ia possible temptation to the average man as a
judge" and which might interfere with fair treatment of the
accused. Id. at 250.

      These authorities suggest that a justice's  involvement
in law enforcement through his employment as jailer by a law
enforcement officer could prevent him from qualifying as a
"neutral and detached magistrate"   for the duration of that
employment.   Moreover, his status as the sheriff's  salaried
employee might undermine his independence of judgment      in
decisions about warrants requested by the sheriff's   depart-
ment.

     We will not further consider whether a justice of the
peace who is also a jailer can qualify as a neutral and
detached magistrate.  A decision that he does not qualify
would invalidate the warrants, but would not necessarily
cause the individual to vacate either his judicial office
or his employment.   Nonetheless, the fact that this dual
employment raises such serious questions under the Fourth
Amendment of the United States Constitution    demonstrates
that the duties and loyalties of the two positions      are
inconsistent. We conclude that the common law doctrine   of




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incompatibility prevents one person from serving as    both
justice of the peace and jailer of the county. We need not
answer your question about the application of article XVI,
section 40, of the Texas Constitution.

                       SUMMARY

           The common law doctrine of incompatibility
        prevents one person   from serving as justice
        of the peace in a county and as jailer in the
        same county. The duties of the justice of
        the peace as magistrate conflict with those
        of the jailer as an employee of the sheriff.
        Moreover, arrest warrants and search warrants
        issued by a magistrate   who is also a jailer
        might be invalid under the Fourth Amendment
        of the United States Constitution.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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