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TX JM-485 April 24, 1986

Could the same person serve as both a Texas county constable and a county jailer?

Short answer: Yes, as a matter of law under JM-485. A constable held a civil office, but a jailer working under the sheriff's control did not, and the two positions were not inherently incompatible, although particular duties could create a factual conflict.

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This page answers the general question as of 1986. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Currency note: this opinion is from 1986
Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. The opinion dates from 1986; verify current statutes and case law before relying on it.
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Texas AG Opinion JM-485: Serving as Constable and Jailer

Plain-English summary

Gillespie County asked whether a person who worked as a county jailer could continue in that job after becoming a constable. The request said the person had not been made a deputy sheriff. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

JM-485 found no legal prohibition. It said a constable was a civil officer of emolument, but a jailer was not because the jailer was "completely under the control of a sheriff." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

The opinion also found the positions not inherently incompatible. It cautioned, however, that it could not exclude the possibility that a particular jailer's actual duties might conflict with the constable's office as a factual matter. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the constitutional dual-office ban apply?

No. JM-485 said the person held only one civil office because the jailer position was employment under the sheriff's control. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

Were the positions incompatible at common law?

Not as a matter of law. The opinion reasoned that once a constable delivered a prisoner to the county jail, the constable lost jurisdiction over that prisoner and the sheriff's control of the jailer did not invade the constable's duties. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

Could particular job duties still create a problem?

Yes. JM-485 said its legal conclusion did not preclude the possibility that "a particular jailer's duties would be incompatible with the office of constable, as a matter of fact." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

Background and statutory framework

Article XVI, section 40 barred one person from holding more than one civil office of emolument. The opinion applied the test of whether the person exercised a sovereign governmental function largely independent of others' control. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

The common-law incompatibility doctrine barred simultaneous offices when one could impose policies on or control the other. JM-485 found no necessary overlap between the sheriff-controlled jailer job and the constable's office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

Citations and references

  • article 5116, V.T.C.S.
  • Texas Constitution article XVI, section 40
  • article 988b, V.T.C.S.
  • Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App. - Corpus Christi 1976, no writ)
  • Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App. - Beaumont 1966, writ ref'd n.r.e.)
  • Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
  • Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, holding approved)
  • State ex rel. Brennan v. Martin, 51 S.W.2d 815, 817 (Tex. Civ. App. - San Antonio 1932, no writ)
  • De La Garza v. State, 579 S.W.2d 220 (Tex. Crim. App. 1979)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0485.pdf

Source

Original opinion text

Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

April 24, 1986

Honorable Gerald W. Schmidt
Gillespie County Attorney
County Courthouse
Fredericksburg, Texas 78624

Opinion No. JM-485

Re: Whether an individual may serve simultaneously as constable and jailer

Dear Mr. Schmidt:

You inform us that an individual who had been working as a jailer at the Gillespie County jail became a constable in Gillespie County. You ask whether Texas law prohibits him from holding both positions simultaneously.

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 what his duties are as jailer, we assume that you use the term "jailer" as it is used in article 5116, V.T.C.S., which describes a jailer as someone who is in charge of a county jail but under the supervision and control of the sheriff.

We find nothing in Texas law that prohibits, as a matter of law, an individual from serving simultaneously as a constable and as a jailer.

The prohibition in the Texas Constitution against dual office holding prevents one person from holding more than one "civil office of emolument" at one time. Tex. Const. art. XVI, § 40. The courts have held that a person holds a "civil office" for purposes of that provision if he exercises any sovereign function of government for the benefit of the public and is largely independent of others' control. Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App. - Corpus Christi 1976, no writ); Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App. - Beaumont 1966, writ ref'd n.r.e.); Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). A constable is a civil officer of emolument. Attorney General Opinion M-45 (1969). A jailer is not a civil officer of emolument because he is completely under the control of a sheriff. Thus, the constitutional prohibition against dual office holding does not preclude a constable from working as a jailer.

The common-law doctrine of incompatibility prohibits one person from occupying two offices when one office may "thereby impose its policies on the other or subject it to control in some other way." Attorney General Opinions JM-129, JM-133 (1984); see Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, holding approved); State ex rel. Brennan v. Martin, 51 S.W.2d 815, 817 (Tex. Civ. App. - San Antonio 1932, no writ).

A sheriff has a statutory right of control over the jail in his county and over the jailers he employs. De La Garza v. State, 579 S.W.2d 220 (Tex. 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 O-1548 (1952). Thus, the control a sheriff exercises over a jailer does not invade an area in which the jailer also has powers and duties as a constable and the two offices are therefore not necessarily incompatible. As the court said in State ex rel. Brennan v. Martin:

The duties of the two offices are wholly unrelated, are in no manner inconsistent, are never in conflict. Neither officer is accountable to the other, nor under his dominion. Neither is subordinate to the other, nor has any power or right to interfere with the other in the performance of any duty. The offices are therefore not inconsistent or incompatible. . . .

51 S.W.2d at 817. Although we cannot conclude that the positions of constable and jailer are legally incompatible, our opinion does not preclude the possibility that a particular jailer's duties would be incompatible with the office of constable, as a matter of fact. See Attorney General Opinion MW-415 (1981).

Finally, none of the information you have given us suggests either a conflict of interest under article 988b, V.T.C.S., or a violation of any other Texas law.

SUMMARY

The constitutional ban on dual office holding does not prohibit someone from serving simultaneously as a constable and a jailer. The common-law doctrine of incompatibility does not, as a matter of law, prohibit such a situation.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

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