                                          The Attorrwy          General of Texas

JIM MATTOX                                                 April 24, 1986
Attorney          General



Supreme     Court Budding                 Ronorable Gerald \I. Schmidt               Opinion No. .JM-$85
P. 0. BOX 12548
                                          Gillespie County I&torney
Austin.   TX. 7871 l- 2548
51214752501
                                          County Courthouse                          RS: Whether an individual may
Telex   9101874.1367                      Fredericksburg. Texas    78624             serve simultaneously as con-
Telecoow       512M75.0266                                                           stable and jailer

714 JaCkSO”.    su:re 700
                                          gear Ur. Schmidt:
Dallas.   TX. 75202-4506
2141742.8944                                   You inform us that an individual who had been working as d jailer
                                          at the Gillespie C:ounty jail became a constable in Gillespie County.
                                          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
-‘Wl    Texas.      Suite   700           what his duties are as jailer, we assume that you use the term
     ,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.          SU!S 312
LubboCk,     TX.      79401.3479              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 8
McAllan.     TX. 78501.1685                    The prohibition in the Texas Constitution against dual office
5121682-4547                              holding prevents .one person from holding more than one "civil office
                                          of emolument" at one time. Tex. Const., art. XVI. 540. The courts
200 Main Plaza. Suite 400
                                          have held that 2. person holds a "civil office" for purposes of that
San Antonio.  TX. 78205.2797              provision if he wrercises any sovereign function of government for the
51212254191                               benefit of the rublic ar.d is larerlv indauendent of others' control.
                                          Ruiz V. State, iA0 S.WiZd 809. Bil '(Tex. Civ. App. - Corpus Christ1
                                          1976, no writ); xilley v. Rpgers, 405 S.W.2d 220, 224 (Tex. Civ. Lpp.
 An Equal        Opportunity/
 Aflirmative       Action     Employer
                                          - Beaumont 1965, WIhit rtzf'd n.r.e.); Aldine Independent School
                                          District v. Stanch,    280 S.W.Zd 578, 583 (Tex. 1955). A constable is
                                          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



                                                                           p. 2223
Honorable Gerald W. Schmidt - Page 2 (m-485)




policies on the other or subject it to control in SOM other %a?."
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:houghwe cannot conc?clc chat the FCsfti0n-c
cf constable ar.djailer 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
either  a conflict of inl:erest under article ?eeb, V.T.C.S., or a
violation of any other Texas law.

                             SUMMARY

             The constitw::tonalban 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




                                 p. 2226
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




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