Untitled Texas Attorney General Opinion

OFFICEOFTHEATTORNEYGENERALOFTEXAS AUSTIN f54!

Ron. Shelburne p..Clover Oounty Attorney Jerrerson,Tox55 c !, \ D5ar Sir: \ Oplnlon ao. o-1262'-.‘-.\ Re: Can a daputs(-ehprlrral5 i? hold 5 c~laalon as a$&kQa r? Tour letter or a king e her or not It would be a violet1 itution51 % QVl5lOIU3 r0r a deputy ibherirr to 6~ ire a apeala Ranger*8 o&sr~ion, reoelved.

lele 16, Se&ion 40

hold cm exerci rice 0r m01~

n, however, has no appllaetlon5 der the statutes, ocm- re the deputy 5hdrr 1 Ranger nould not violate

seq., Revised Statutes, provide herFir and prescribe hle quallrioa- rovlde that the aheriif zmy appoint we&he same powers, autb and raspon-

, Subdivision5, provides for the Fublia c4retj Gosmlsslon,and provides that such Speoial Rangers shall at all tisleebe subjsat to the orders of the Cot~&tmlon and the Governor for epeolal duty to the same extent ma the other law eniorclng orricers provided ror in said Art- iole. It provide@ that the Speafal Rangers shall not be entitled to draw any aoqieuaationend ahall here no aath: orlty to enforce any law exaept those designed to ‘proteat life and property.

Hon. Shelburne H. Clover, PeSe 2.

h deputy sheriff is subject to the orders of the sherlrf, and is required to enforce the laws within the psrtlcularoounty wherein he 1s appointed. He necessarily owes his allegisnoeto the sherlff'ofsaid oounty and to the citizens of said oounty, es a law enforclnSofficer. A Speolal Ranger is aubjeot to the orders of the Department of Yubllc Safety and of the Governor. It 15 easy to con- template that at timee there might be a conflict batueen these respeotlve departmentsof government. If the Depart- ment of rubllc Safety should oFantthe Special Ranger to do a oertaln act in a oortsln way within the county where he serves as deputy sheriff,and the sherifr should desire it done in e differentmanner, the authority of the two would oonfllot. Again, if the Department of Pub110 Safety should desire the servioes of the Special Rcnger for some other part of the State an6 the sterifr needed him in the oounty where he served as deputy sheriff, there uculd be a oon- rii0t or authority. This being true, ths two 0rriiaee are Incompatible,and no person should hold both'of them et the same time. It is very true that no one oan yaerve two nsstere." In Thomas vs. Abernathy County Line fndependeat School District, 290 S,?i.152, our Supreme Court held that a person could not hold the office of school trustee and at the same time be an aldenzianin the olty, neither Or which plplcespaid any salary, and used the foIlowing language: *In our opinion the offices of school trustee: and aldermsn are incompatible;for, under our’sys- ternthere are ln the city coun,cllor bosrd of alder- msn various directory or supe%olsorypowers exertable in respeat to sohool property loaated within the city or town, end in respect to tte duties of sohool trus- tee performablewithin Its limits--e.2.,there might vie11arise a 00Orlict of discretionor duty in res- pect to health, quarantine,sanitary and fire preven- tlon rsjiulatlons.If the same person could be a school trustee and a member of the city oonncdl or board of aldermen et the 8ame time, school'pOIicie5 in meny important raswots would be subjeat to dlreatlon of the coun'cllor aldermen instead Or that of the trustee&*

Hon.,Shelburnc ?T.Glover, Page 3.

A sherlrr 15 required to execute a bond for the faithful performance of his offlclolduties whether same are performedby hln or by hle deputy. A Special 28nger ie re- @red under the statutes to make a bond. It might be a difficult task to determinewhether the officer was acting a::a deputy sheriff or a6 a spacisl ranger, if he was serv- ing in both cepaoltie6. In State YE. AnUerson, 155 Iowa 271, 336 FL 0. 128, the Supreme Court of Iows held thst a parson could not aot as msyor and jueticc of the peace at the 68661time, and In said opinion used this lsnguage: "It is a well settled rule of'ooumon law that If a pereon, while occupying one office, accepts another inoompatlblewith the $irst, he ipso racto vecates the first office, and his title thereto la thereby terminatedwithout any other act or pro- ceeding... It 18 held that 1ncm.patibilit.y in of- fice eriete where the nature and duties of the two OfriCeb are such as to render lt.lmproperrrcw consideration6of public policy for an incumbent to retain both.* In State ex rel. Banker VB. Bobet, 218 W.W. 253, the Supreme Court ef Iowa held that a party could not hold the orfice of aoneteblean& msrshal at one end the 6ame time. After quoting the provisionof the statute whloh provided ror two constable6within certain prealncte,and provided ror a city msrlruhal in certain towns, the court used thla language:- *Thus there muot be two constablesbecause ttmre are two justice court6 in each township, nnd aleo a marshal is required to j~crformthe duties devolving upon hi& in waiti&g upon the - mayor. lo do othcrwlse would amount to an alter- ation of the general plan. men more, such pro- cedure would aau6e the neglect of one for the ser- vice of the other. Perhaps at the 68me moment civil writs (in attachment,replsvin, or other- wise) or orlminal warrant6 rrom both courts would demand eervioe at the ldcntical time. Answer to this propositiondoe.6not exist in the assertion that under the acthoritles cited mere phy6loal sbsenae doe6 not cr66te the*inoompatiblllty*. As a matter of feet, bodily tbo appellant in this instance ia present within the city and township,

Ron. Shelburne ??.clover, Page 4.

but he cannot serve the justloe court, beaause he ewes olle~lanaeto the mapor*e court. wFermisslonfor him to do this means ninimi- zation of the publia service, abrogation of the statutory requirements,and departure from our oria,inalf.overom0ntalfonn. Publia pollay, and not phyalcol absence, aausea the ~lncompatiblllty~*6 vietherefore hold that a pertg aannot hold the office of deputy sherirf and "Spaoial Ranger*1at the BBLDO ticxt. Yours very truly A’lTORT?EY GXWtiAL OF TXLG

BY George W. Beraue Assistant

COMMIITEE