         TEE       ATSORNEY               GENERAL
                      ow       7ITExA.s




                      ~~r-11   19,   1962

Honorable J. Albert Dickie             Opinion No. ~-1316
County Attorney
Coryell County                         Re:   The legality of one
Gatesvllle, Texas                            person being a constable
                                             and:.alsoserving as an
                                             alderman of an incor-
Dear Mr. Dlckie:                             porated city.

          You have requested an opinion relative to the legal-
ity of one person being a constable and also serving as an
alderman of an incorporated city. Your specific questions
are as follows:
          "Can a constable receiving emolument
     for that offlce also serve as an alderman
     in an Incorporated city located in the same
     precinct where he serves as constable, if
     he does not receive any emolument for
     serving as such alderman?
          "Is the office of constable and city
     alderman incompatible, making the question
     of serving in both capacities unconstItu-
     tional, forcing a ~reslgnatlonof the former
     upon election to the latter, regardless of
     the question of emolument?  If the answer
     to this question is that they are incompat-
     ible, then please ignore the next question.
         "Where the constable receives emolu-
    ~ment for that office and eventhough emolu-
    ment is provided for by ordinance for city
    alderman, such alderman is not In fact paid
    such emolument, can the constable retain
    the office of constable after elected alder-
    man, If he does not receive emolument for
    the office of alderman?"
          Section 40 of Article XVI of the Constitution of
Texas reads In part:
          "No person shall hold or exercise, at
     the same time more than one civil offi.ceof            '
     emolument, . . .n
n   .J




         Hsnorable J. Albert Dlckie, page 2 (~~~~-13.6)


                   Dual office holding 1s speciflcally forbidden by
         Section 40 of Article XVI of the Texas Constitution where
         both offices are civil offices of emolument. Dual office
         holding is forbidden to an extent, at least, by Section
         33 of Article XVI wherein the~accounting officers of the
         State are forbidden to issue or pay a warrant upon the
         Treasury for the payment of salary or compensation to a
         civil officer, who, at the same time, holds another office
         of honor, trust, or profit under the United States or the
         State of Texas.
                   In Graves v. M. Griffin OlNeil and Sons, 189 S.W.
         778 (Clv.App. 1916) th C     t h Id th t Section $0 of Artl-
         cle XVI of the Constitu&.o?~f TExas w:s not applicable to
         the office of alderman of the City of Tioga, stating:
                   ”
                        ,Thls contention Is based upon
              that pGo&ion    of our Constitution (section
              40, article 1.6) which prohibits any person
              from holding in this state at the same time
              more than one civil office of emolument.
              The answer to this contention, If there be




                   In answer to your first question, therefore, you
         are advised that the constitutional prohibition against the
         holding of more than one office of emolument is $nappllcable
         under the facts stated In your first questton fotithe reason
         that no salary for alderman is provided by statute or city
         ordinance. Likewise, Section 33 of Article XVI is not violated
         for the reason that neither a constable nor an alderman is to
         be paid out of the State Treasu      Attorney General's Opin-
         ions V-242 (1947), and v-883 (1gTGj.
                  It is also a fundamental rule of law that one per-
         son may not hold at one time two offices the duties of which
         are Incompatible, and this rule applies whether the office is
         named In the exceptions contained in Article XVI, Section 40.
         Attorney General's Opinion V-242 (1947).
.       .




    Honorable J. Albert Dickle, page 3 (WW-1316)


              We have considered the respective duties encumbent
    upon a constable and an alderman of an Incorporated city and
    we can conceive of no basis upon which it may be said that
    the offlces are Incompatible; therefore, In answer to your
    second question you are advised that the office of constable
    and the office of city alderman are not incompatible.
          In answer to your third question, if emolument 1s
provided for by ordinance for the city alderman such office
would then constitute an office of emolument the same as the
office of constable constitutes an office of emolument. In
such event Section 40 of Article XVI would prohibit one per-
son from holding both offices, even though the individual ln-
volved is not In fact paid the emolument provided for by
ordinance. Therefore, in answer to your third question, If
emolument is provided for by ordinance for a city alderman
Section 40 of Article XVI of the Constitution of Texas will
prohibit one person from holding both offices.
                             SUMM~ARY
            One person may~hold at the same time both the offloes
            of constable and city alderman if no emolument is
            provided for the office of city alderman by statute
            or ordinance. The office of alderman and the office
            of constable are not incompatible. In the event
            emolument is provided by ordinance Section 40 oft
            Article XVI of the Constitution will prohibit one
            person from holding both offices atethe same time, ..'.
            even though the person attempting to hold such
            offices 1s not In fact paid the emolument provided
            by ordinance.
                                        Yours very truly,
                                        WILL WILSON
                                        Attorney General of Texas


                                         ohn Reeves
JR:wb:zt:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Grundy Williams
Bob Shannon
Frank Booth
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
