                                The Attorney’ General of Texas
                                                     Jmuary   15.        1986
JIM MATTOX
Attorney General
                                                                                T4,.s   (g ph~-o~

s~pwne CourtBuilding            RoMrAble Tim Rod$;c.rs                           Opinion No. m-422
P. 0. BOX m4a                   Wise County Audito!
*ustIn. TX. 78711- 254a         P. 0. Box 899                                    Rc: nether  the offices  of constable
SW4752K)l
                                Decatur, TexAs    ;‘6234                         And city marshal, And the OffiCaS of
TeIaX 91olB7Ll367
Talecopier 31214750266
                                                                                 justice  of the peACA And QnmiCipal
                                                                                 judge. ere incompatible;  And related
                                                                                 matters
714 h3cson. Suite 700
Da~m. T7.. 75202.4506
                                DeAr Hr. Rodgers:
214f742-8944

                                     You Ask:
41J24Albwta Ave.. Suite 1W
El P,so, TX. 799052793                        1. Wether A person Appointed chief of police
91Y5334a
                                           in A city wIthIn the county con cllso serve simul-
                                           taneous!.y AS the elected  ConstAbble of A precinct
 ,001 Texas, Suite 700                     in which the city is located;
 “ovrton. TX. 77002-3111
 7?3’222-5886                                   2.  Vhether A person elected      justice of the
                                           pAACe   iI1 thr pTACitlCt CAn SAX-VA SiSNltAneOUSly AS
 606 Broadway. Suite 312
                                           parttiw     appointed magistrate for the city;  And
 L”~c+ck. TX. 79401.3479
 lxw747.5238                                    3. Whether  either    situation  would present A
                                            risk of increased    liability    on the past of the
                                            county.
 4x39 N. Tentn. Suite B
 MCN.“.   TX. 78501~lS85
 SWSS2.4547                            You advise t1a.t A eun llActed constable in 1982 WAS hired in 1984
                                by A gcnersl     law city located     within the precinct   as its chief of
                                police.     The comti.ssioners    court thereupon declared    the office  of
  200 bin   Plaza. Suite 400
                                constable    VACAOt.  Thereafter,    the man YAS Again elected constable of
  San A”,O”lO. TX. 762052797
                                the precinct,    but the commissioners     court has refused to certify  Xs
  51212254191
                                most recent elcct!.on or to approve his bond.

  An Equal Opportunltyl                 A single ind:lviduAl may not simulr~neously        hold two incompatibLe
  Affirmative Action Employer    offices.     “Incompat.ibility”    is to be distinguishcd    from A “conflict of
                                 intCreSt.”      As saLd. in Attorney   General Opinion JM-172 (198&l:

                                                Ordirra.rily , A mere ’conflict            of        interest’
                                            !&,      21 conflict    created by chr private           pecuniary
                                            interest: of a public officer          or employee)       will not
                                            make a pcrson        legally     ineligible    for       a public
                                            office   <II’position,     although the existence           OI such




                                                                    p.    1923
BOnO?Abh    Tim Rodgers    - PA~II 2     (m-422)




            A   COUfliCt xay PIlkC it illAgA1 on OCCASiou for A
            public officer       or’ employee to exercise         his public
            authority.        See ‘hger TV. State es rel.            TeVault.
            446 S.W.Zd r&x.               Civ. App. - Beeumont 1969,
            writ     ref'd     n.r.Nk.1;     At Coney       CAnerAl     Lattar
            Advisory No. 13 (1973).            See AISO City of Edinburg
            v. Electric       Const.xuction Co., Inc. v. City of San
            Antonio,      437 S.\Etd 602 (TAX. Civ. App. - San
            Antonio      1969,     wit     ref’d     n.r.e.1;     Meyers Y.
            Walker, 276 S.W. 305 (Tex. Civ. App. - EastlAnd
             1925, a0 writ).         On the other bend, ‘incompati-
            bility’      prevents. one person            from holding       tuo
            governmental posts          if the positions          are incom-
            patible.       The conflict         in an ‘incompatibility’
             situation      is not between an officer’s                private
             interests     and his public duty, but rather between
             two inconsistent         public     duties.      See Themes v.
             Abernathy County Line Independent School District,
             290 S.W. 152 (7%.            Cosxa’n App. 1927);         Attorney
             General Opiniom3 JM-97 (1983);                   MW-170 (1980);
             Attorney General ‘Letter Advisory Nos. 114 (1975);
             86 (1974).

        In our opinion,       the offices      of constable      of A precinct      and of
 chief of police of A general law city located within the precinct                       are
 incompatible.        A constable        is    required     to    exercise     independent
 judgment respecting        the pr’oper discharge of his duties,            including his
 responsibility      to preselvc! the peace.          See Tex. Coast. art. V, 518;
 V.T.C.S.     art.   6878, -- et saqy; Code Crib            Proc.    arts.    2.12.   2.13;
 Attorney GenArAl Opinions JM-140 (1984); J’M-57 (1983).                   See also Webcr
 v. City of SAchSe. 591 S.W.2d 563 (Tu.                  Civ. App. - DALLAS 1979, no
 writ).      Cf. State LX rel.         Eightover v. Smith, 671 S.W.2d 32 (Tex.
 1984) ; JoncS v. state.          lj;, S.W.2d 244 (Tex. Civ. App. - TSArkAnA
  1937, no writ);     Attorney General Opinion J’M-57 (1983).               Re is elected
 by the citizens       of the precinct       to discharge     his duties independently
 of the wishes -- even if wpressed                by ordinance -- of the governing
 body of a city located vj.thin the precinct.                  On the other hand, the
  chief    of police     of s city      is subject      to the control        of the city
  council,    and is duty bound to enforce its ordinances.                   V.T.C.S.   art.
  998.    The tuo officers      arc subject to inconsistent           duties, making the
  offices    incompatible.       Sw Attorney General Opinion Jh-203 (1984).
                                 ---
  See also V.T.C.S. arts. 9!Kl, 999a; Alexander v. City of Lampasas, 275
  S.W. 614 (Tsx. Civ. App. - Austin 1925, no writ);                      Attorney+General
  Opinion hU-394 (1981).           Cf.
                                   ---   Attorney    General    Opinions    E-727 (1975);
  O-1263 (1939).

        When the constable e:;ectcd in 1982 became chief               of police of the
 city   in 1984, ipso factc, he automatically    vacated               the incompatible
 office   of constable.    Tfoms
                           --       v. Abernathy  County               Line Zndependent




                                          p. 1924
School District.      290 S.W. 1.52 (Tex. Cosss’a App. 1927 judSmt adopted).
See Attorney     General Opioloo JM-97 (1983).           Cf. Prultt v. Glco Rose
tndependeot     School District    No. 1. 84 S.W.2d 1004 ?Tex. 1935).          But he
did not thereby become ioslinible            to future    election    as coostable,
lv8a though he -continued       1x1 s&vc   as chief of police.       See Centeno v.
lnselmann,     519 S.U.Zd     889 ( T a x .Civ.    App. - San Antxo         1975, no
xrit).is        occupancy of th e police      post cannot justify      a refusal    on
 the part of the county cosmtissionern           to certify    his election      or to
 approve    his bood,     bccauslc once he qualifies          for   the   office    of
 constable,    ipso facto    thl! position    of chief    of police    is instantly
 vacated (for the reason d::ocussed above) and ha holds only the office
 of coostable.      Ceoteoo v. -Ioselmaoo.      B.       See Stat=       rel. Peden
 v. Valeotine,     198 S.W. 1006 (Tex. Civ. App. Tort             Worth 1917, writ
 ref’d).

      We are alao of the oploiou     that the doctrine  of Incompatibility
prevents  a person clectei   justice    of the peace from serving    simul-
taneously  as a parttime appointed magistrate    for the city.

       Tvo opinions of this office        -- one dated harch 16, 1913, and the
other dated October 3, 1913 --          found   in the 1912-1914 Report of the
Attorney    General at pages 722-724, advised that the offices        of justice
of the peace and of jud,str (recorder)            of a corporatlou   court vere
Incompatible.        The later opinion explained that although article        XVI.
section    40 of the Texas Constitution         exempted justices  of the peace
frox its proscription         against holding more tbao one civil      office   of
emolument, it did oot exmpt them from the further 1limitation                 that
additional      offices    held bsy thw      must not be incompatible       or in
cooflict     vith     the office!   of  !uatice   of  the peace.    The oniaion
conclud.ed the offices       were ioncompatible because,

             to the extent of offenses        arising  under the State
             law.     the   justice    of  the peace     and the city
             recorder      could    take jurisdiction     of the same
             offense,     and, consequently,    you vould have one man
             presiding      over two courts      of concurrent  juris-
             dlctioo.

 Id. at 726.   See People e:t rel. Goode11 v. Garrett, 237 P. 829 (Cal.
 57.    1925), %?h’g   deni&      See also   State   ax rel.   Crawford v.
 Andersoo. 136 g.W. 128 (10;s 1912).     Cf. Thomas v. Sams, 734 F.2d 165
 (5th Cir. 19841, reh’g denled,
                             --   741 F.5783    (5th Cir. i984).

         IO 1940, Attorney    General Opinioo     O-2055 overruled   the 1913
 opinions on grouods (1) thae the case of Luera v. State, 63 S.W.2d 699
 (Tex. Grim. App. 1933), “cecessarlly”     dcclded that the holding of the
 tvo offices    by one person :is not inhibited     by the rule of incompatl-
 bility,    and alternative27     (2) that    tvo    judicial  posts  are not




                                      p. 1925
Honorable   Tim Rodgers - Ps8r 4              (Jn-422)




incompatible         ocrely  baause     thq           are   vested     vith         concurrent
jurirdictioo.        We agree with neither          of those assertions.

       The Luera case iovolv~rd a claim by a                criminal  defendaut   that the
search vaz         involved should have beeo               quashed because the justice
of the peace vho swore thus affimts      vas               “oat s qualified     and acting
legal    justice  of the peace” in that he                 had qualified     and was slso
acting     as the recorder   of a corporation                  court at the time.       The
Commission of Appeals vrotc!:

                Article      16. $40, of the Coostitutloo.                 provides
                that    ‘no person shall hold or exercise,                   at the
                Same     time.     mol’cl than      one     civil      office      of
                emolument, except that of justice                 of the peace,
                county        comis~r:ioner,         ootary        public        and
                postmaster.’      etc.      It will therefore       be seen that
                under       the     Cop3titution         there      Is      nothing’
                prohibiting      the Lustice      of the peace from holding
                or lxercisiog          ‘sore than      one civil        office     of
                emolumcot.       (Eu$&sis      added).

 63 S.W.2d at 701.

        From the foregoing       pmsage it is apparent tbat the Commissioo of
 Appeals    in its    original     opinion did oot consider       the rule against
 holdiog    incompatible     offices,     but considered    ouly the article    XVI,
 section     40 constitutiona:.       prohibition   against    the holding   of tvo
 offices    of amolment.       from vhich justices     of the peace are excepted.
 The Court of Criminal           Al~peals approved the opinion:        a motion for
 rehearing vas overruled bmause the court remained convinced of “the
 correctness     of the disposPtion        made” aod it   sav oo need for further
 vriting     upon propositions         that    vere “correctly    decided”   in  the
 origioal    opioioo.

       The disposition    of the case vas correct,   of course, if the motion
 to quash the search varrant: was properly denied - no matter what vas
 the proper ground for its, denial.        Cf. State v. Cook, 160 S.E.2d Il9
 (N.C. 1968).     The argument that arti=       XVI, section 40 of the Texas
 Constitution   required quashal was properly refuted by the court, but
 if the issue of locompatibility       hsd been raised and the offices    had
 been pronounced       incompa ::lble, the    outcome would oot    have been
 different.

        Judges of corporatj 00 courts     may also  execute   valid  search
 varranfs.    O’Quinn v. State, 462 S.V.2d 583 (Tu.      Grim. App. 1971).
 Cf. Carnell V. State, 70 ?rW.2d 152 (Tex. Crlm. hpp. 1934).        Because
 the first    of the Incompatible   offices  would lwze been vacated by
 acceptance of the second me, the person taking the affidavits       was an
 officer   authorized to do :w, whichever of the offices   was the one last




                                               p.   1926
Booorablo   Tim Rodgers - Palie 5        (JM-422)




lcctpttd.     Stt Ctnrtoo v.       fnetlmann.       e;     State   v.   Cook,   m.
Conrtqutotly vt,   do oot     bd?iltve     eht Lutra tes    t
                                                            “ntcertorllp~     dtcidtd
that  cht holding of tht      ol’ficcs    of jui        of tht QttCt and rtcordtr
of tht corporaclot   court    b:r oot    person ir aoc iohibirtd     by tht rult     of
incompatibility.     Nor     do vt       thiok    rht alternative      rttaoning     of
Attornty GtntrtlOpinion       0,~:!055   requirts   rher cooclusion.

       Attornty   Gtocral   Op~loion O-2055   argued that tht      eoocurrtnr
jurisdiction    txtrcittd   by the juetict court and rht municipal       court
could ooC, in itself,     rtndgcr the offices incompatible btcaust:

            Ntithcr    office    is   accounCable    to, under the
            dominion of, or subordinate        20 the other; ntithtr
            ha8 any righr or power to ioCcrftre        vith the other
            in the performawe       of any duty.      An apptal from
            either court has no rtlation        to rht othtr, but is
            indeptodtotly     to other courts.

We belitve    rhc fortgoing     1:atslogue of conflicts   ntithtr    accurately
states tht complett test ,:I incompatibility.        nor accurately     rtfltcts
tht  full relationship    betieeo    courts of concurrent jurisdiction.         See
Codt Grim. Proc. art. 4.14; Peoplt tx rel. Goodtll v. Garrttt.           6

       Courts of coocurrtnt      jurisdiction     may waive their jurisdiction         in
favor of each other vitk. respect              to particular      eests.     Flares    v.
Statt. 487 S.W.Zd 122 (Tu.          Grim. AQQ. 1972).        If one person acted as
bothjustice     of the peace and city judge at tht same time. it would be
within his power to manipc,latc the Income of the courts over vhich ht
presidtd to the advaotagt or disadvantagt              of either rhe county or tht
city -- to both of whict. ht would owe a duey of colltctloo.                          The
reeeoo is. justices      of tht ‘ptact     are requlrtd to account to the county
trtasurtr     for  the fiots        colltcttd     by his      court,   whereas     fines
colltcttd    by city    judges ,go into ciry coffers.             Ste    V.T.C.S.    art.
 1619; Codt Grim. Proc. art. 45.06.           By waiving the jurisdiction         of the
 court in favor of the other court,              the “justice      of ehe peace/city
 judgt” could enrich ont &wtrnmental               cotiCy at the expense of the
 other, depending, ptrhaps, on which of them used such fees to comptn-
 sate the offictr    colltctirlg     rhem. -Cf. Attorney General Opinion C-718
 (1966).

        It is not correct,  t’xrefort.     to say that ntither court has any
 right or power to interf s:ce vith        the other.     But there is another
 reason why Attorney Central Opinion O-2055 reached an improper result.
 The test it formulated Is too narrow.           Courts -- Texas courts among
 them -- look to the publx: policy which the rule against              incompati-
 bility    seeks to Implement,   and   not  mtrely   to recitals of conflicrinR
 relationships     cond&ned  :.ri the past.       see 63 Am. Jur.       2d Fubli;
 Officers    and Employees 578, at 726; Stexo            State lx rel.    Knox v.
 Hadley, 7 Wise. 700 (1860:;      People ex rel. Goode11 v. Garrett,        supra.




                                            p. 1927
Roaoreblt     TIB godgtrr    - PeI,e 6    (RI-4221




Cf. ehlingtr   v. Clerk, 8 Z;.W.2d 666 (Tu.  1928); gaskiot v. Stete lx
x.    Earringtoo.  516 P.2d 1.171 (Wyo. 1973); Attorney   Gtotrel Lttter
Advisory No. 114 (1975).

      Thlt     offict   concludtd   In Attornty      Ctotrel   Opinion   WU-1359 that
oot ptrson could not hold 8~ the teme dme both tht offict of justice
of tht ptace, plect  oat, end justice of tht QUCC.  Qhce  two.   10                     8
single precinct.    The opinion dlrcusttd    article   V, srcrlon   18 of the
Turns Constltutioo,   but tht! rtel bttit for dtcition     setme to hevt been
public policy refltcttd   by tht incompatibility     doctriot:

               [W]hIle P Justice    of the Peace may hold somt other
               offlct  oat 1ocom)atlblt   with the office of Justict
               of the Petct,     lw may not hold      tht offlcts    of
               Justice   of tht Peace, Prtclnct      1. Piece 1, and
               Justice   of the I'sace, Precinct   1, Place 2 et the
               semt time.

Cf.   Attorney     Central   Opinions    V-1192 (1951);   V-828 (1949).    Wt btlieve
Attorney      Gtntral Opinion SW-1359 ceo be viewed          no overruling   Attornty
Gtntral      Opinion O-2055.    sub tilentio.
                                --
      Rttsooiog    slmiler     tf) that ustd by Attorney General Opinion
WV-1359 ves used IO the wet of Sate             ex rel. Knox v. Etdlte,       s\tprrr,
nod Ptoplt tx rtl.      Goodel:,v.   Garrttt.    supra. to hold that we person
could not at the eeme time eerve et 8 justice             of eht ptect end e city
judge with ovtrleppiog        concurrent    jurisdiction.       Set rlso Statt ex
rel. Crawford v. Andtrtoo, suprl;        In rt Corum. 62 P.661 (Kens. 1900).
Cf. Eeocock v. Sape        225 lio.2d 411 (Fla. 1969); Stete v. Cook, aupra.
Wcbtlltve     the cour;t    of T8cxes would dtclart       rhtt the statutory     pro-
visions   for a “judge” of l:lre munlcIpa1 court (V.T.C.S. art. 1196) end
 for “ont justice    of tht ptrtrct” In tech precinct.        (V.T.C.S.  err. 2373)
coottmplete    that each offIct     will bt fllltd     by a different   ptrson. end
 thet the officts     ere incoprpatlhlt.      Cf. Iitrris County v. Stevert.       41
 S.W. 650 (Ttx. 1897); --   Ex Earta WIlbarF,       55 S.W. 968 (Tex. CrIm. App.
 1900).

       Inasmuch es we contludt        that the doctrine    of incompatibility
 prevents a juscicc   of the peace from simultaneously holding the office
 of city magistrate,    and p'cevents a constable    from holding at the same
 time the office   of chief of police     for a city within the precinct,     we
 do not reach your final       qutstion.     Attorney General Opinion O-2055
 (1940) is overruled.

                                         SUMMARY

                   The dcccrim     of    incompatibility   prevents   a
                constable from s,imultantously     holding the office
                of chief of police    for a city located vithin the




                                           p. 1928
Emoreblr    Tim Rodgtrr        - PegI, 7     (34422)




             prtcinct.        nod prrreots   e juatict of tht ptact  from
             holding     at     tht sme    timt the office   of parrc+be
            maglsrrett         for the city.




                                                       JIM     MATIOX
                                                       Attoroey Generel of funs

JACK HIGETOWER
First Assistsnt Attorney            Gtwral

XARYKELLER
Executive Assistant           Atrornq     Gcntral

ROBERTGRAY
 sQtciel.keiStaot        Attorney       Gc!ntral

 RICK GILPIN
 Chairman. OpIoioo       Coumittee

 Prepared by Bruce Younghlootl
 Assistant Attorney Gtntral




                                              p. 1929
