Hon. Edward B. Stewart                 Opinion yo .’V-1370
County Attorney
Yaiingcouilt~                          Rer   Legality of payI* 6 con-
Graham, Texas      .                         stable’s Sialarg whlle’he
                                             Ia temporarily-be%@ p&Id
                                             as-a cltg policetin, ‘tie-
                                             placing a polloeman who Is
                                             Ill.
Dear Sir:
            You have requested an opinion on the following quea-
tiona:
         n1. 1a”the acceptande by a conattibleof a
     tetiporarypaid position aa’& pOlIcemaiiof’an
     ihcorp&ated city, td’replace   a regular    police-            .
     man wh6 l$ 111, such an abandonment of’the former
     posltf’iin
              CLsto preclude tlie coi.antJr
                                          treasurer
     from paying .him the conetable’s salary?
         “2 . If the”county   treasurer 1s unauthorized
     to pay’such salary during the existence of such
     temporary employment bjithe city, Yoiildhe be
     authorized to resume paging such salary upon the
     termlilatlonof auoh temporary employment by the
     city and before the re-election of the constable
     to his office a8 constable?”
        Section 40 of Article XVI of the Constitution of Texas
provides in part:
         “?ioperson aha        ho12 or exerolae, at the
     aame time,                          Ofrl    of emolu-
     ment    .   .’ .            not appllcabi.5
                                              e .”
              A pollaeman of an .lnoorporated oity ie an ciffibdti        yittiiii
the
  ..,  msanlng    of   the   above,quoted  cbnstitutlotial     proi+IMori.’
                                                                          ‘w
v. State; 177 S;W; 2&“970, (Tex. Ci9.m.1944). LIkdtia&;‘a con- .--
stable       id.‘an.
                   ofi’iketi   ‘tilthihth6’meafiiha”M’t~he’    above auoted c&ii-
atitutiorial      provlsldn. Torho ‘v,“Rochs&Fler 221 S-;W:~623’(Tex.
Clv.’App. 1923). In the                          It vaa &d       f;h&tSecti&
40&.bi’  ~hi?t’ldle XVI df the 8%   on8 itutibn’of
                                          aaOe‘          TexCiaprotiiibited”bne”’
person iron being at the name time a policeman of an Incorporated
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Hon. Edward B. Stewart,,page 2   (v-1370)


c'ltyand a deputy sheriff'. In the Torno case it was stated at
page 624:
        "If the officer who levied the execution in
   this case, the said Gentry, whiie being the legal
   and duly qualified constable, was subsequently
   appointed town marshal of the legally i;'lcorpoFat@
   town of Slntcn, had duly quvil,f'ledsnd ected as
   such, he ceased to be and vtlcstedhis off?ce of
   constable and became the .townmarshal, an office
   wholly incompatible wfth ,thstof constable, and
   wbuld"have no power to exttcute.wrl.tsof execution
   such as was done in this case. See Artlcie 16,
   8 40 of the Constitution by Hnrrls, end cases
   cited; State v. Brinkerhoff, 66 Tex. 45, 17 S.W.
   log ; Alsup v. Jordan, 69 Tex,,.303,6 S.W. 831,
   5 Am. St. Rep. 53."            .L
        Therefore, it Is our opinion that Section 40 of Article
XVI of the Constitution of'Texas prohlblts a consta& from being
at the same time a policeman of an incorporated city.
        Apart from the constltutlonal prohibition contained.in'
Article XVI, Section 40, It is aiso a rule of common law that 6
person canhot hold two offices where the duties of the offlces~
are Indompatlble. State v. Brinkerhoff, 66 Tex. 45, 17 S.W. 109
(18%) ; Thomas v. Abernathy County Llne IndependentSchooI-Dlst.,
290 S.U. 152 (Tex. Comm, App. 1927)* Irwin il.Stat& suora, held
that-the office of town marshal is "wholly Incompatible with that
of constable." We think it foliows from that holding thet the
position of city poll.cemsnis 1.ncnmpatiblewl.ththe office of
constRbie.
        In Pruitt v Y 'GianRcm~ Ird. School_Dlst. No. i, I.26Tex.
45, 84 S.W. 2d 1.004 100 A,L;R. 11-58(1935), the Supreme Court
stated, st 84 S.W. id 1007:
       "The text, 34 Tex..Zur. 354, Sec. 19, sum-
   marlzee the rule, thus: 'H6vinu electer~to ac-
   cent and qualify for the second office, ipso
   facto and aa a matter of law, he vacates the first
   office. This 1s true, where both offices are
   pieces of emolument, regardless of whether they
   are incompatIble, and if they are incompatible
   there Is a vacation of the first office regardless
   of whether both are offices of emolument within
   the meaning of the ConstItutIun. In suhh dlrcum-
   stances the constItutIonal,provision that ail of-
   f'lcersshall continue to perform the duties of
   their offlceo until a successor has been qualified
   does not apply..'"
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Hon. Edward B. Stewart, page 3       N-1370)


        In an annotatlon to this case, 100 A.L,R. at 1164, It
is stated:
        "It Is a well-settled rul&af the.common law
    that a person cannot at one and the same timi,
    rightfully hold twb offices which are Incompatible,
    and thus, when he accepts a~uolntment".tothe second
    office, -which Fs lncotipatt.ble.
                                    and:auaZlfl.es.he
    vacate8 , or by implication reslp;ns,the first office."
        Th6rePore, we agree with your ConclusSon thkt'when the
constsble accepted the appointment as R pnl.:cemati of an lncor-
poWted city he Vacated his office of constable aiidthe ciziunty
treasurer was unauthorized to psy him any 3Alary as'conktable
after he aasumed ttiedutlks r,fc1t.rpoliceman. We are k~3uniing
‘Znthl'sopinion that the appointment to the latter office wds in
accordance.wlth the 'charterand ordinances of the city for which
he served as policeman.
_
        The person in'queation can resume the office'& con-
ktkble only by being appointed to fill the ‘vacancy heretofdie
created or by being elected to the office at the next general
election.
                           SUNMARY
        One person cannot hold or exercise at the same
    time the offlce of constable and the offIce of city
    policeman. 'When a cor8stab'l.eaccepts an appoinEment
    AS a policeman of an incorporated city, he vacates
                            the izoimty treasurer 1s not
    his former office, ar.lB.
    authorized to paJihim tinysalary aa’coastable   f’rom
    the date of his acceptance of the letter office.
    Sec.,40, Art. XV   Tsx. Const.'
    177 S.W. 26 970 t6ex. Crlti.  1944)                       t
    221 S.W. 623 (Tex. Clv, #pp. 192
    Rose Ind. School Dlst. Nd     t 12
    a 1004, 100 A.L.R.  1158      35) ,..

APPROVED:                     Yours very truly,
J.C. Davis',Jr;
County Affairs Dlvislon       PRICE DANIEL
                              Attorney Oenarel
Jesse P. Luton. Jr.
Reviewing Asa i&ant
Charles D, Mathews            By l,%lohnReeves
First AsaI.stant                   John~R6evos
                                   Asalstflnt
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