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




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