October 30, 1987
Honorable J. Collier Adams, Jr. Opinion No. JM-819
Cochran County Attorney
109 West Washington Re: Reconsideration of
Morton, Texas 79346 Attorney General Opinion
JM-422: Whether the same
Honorable Gale Warren person may serve
Erath County Attorney justice of the peace a::
Courthouse part time appointed
Stephenville, Texas 76401 municipal judge of a
city within the same
county precinct
Gentlemen:
You have requested that we reconsider the second
question addressed in Attorney General Opinion JM-422
(1986). This office was asked whether a person appointed
justice of the peace may serve simultaneously as part time
appointed municipal judge for a city located in the
precinct. Attorney General Opinion JM-422 concluded that
the common law doctrine of incompatibility prevented a
justice of the peace from serving as a municipal judge
under these circumstances. Upon reviewing this question,
and considering legal arguments submitted after Attorney
General Opinion JM-422 was issued, we have concluded that
that question was incorrectly decided.
Article V, section 18, of the Texas Constitution
provides that a justice of the peace shall be elected in
each of the precincts into which a county is divided,
except that two justices of the peace shall be elected in
any precinct in which there is a city~ of 18,000 or more
inhabitants. See Attorney General Opinion JM-174 (1984).
Article V, section 19, of the Texas Constitution provides
that:
Sec. 19. Justice of the peace courts
shall have original jurisdiction in criminal
matters of misdemeanor cases punishable by
fine only, exclusive jurisdiction in civil
matters where the amount in controversy is
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two hundred dollars or less, and such other
jurisdiction as may be provided by law.
Section 29.002 of the Government Code creates a
. . - . . .
municipal court in eacn incorporated municipality. The
municipal court has exclusive original jurisdiction within
the territorial limits of the city of all criminal cases
arising under the city's ordinances and punishable by
a fine within the limits set out in section 29.003(a)(2)
of the Government Code. See also Acts 1987, 70th Leg.,
ch. 600, 53, at 5073, 5074-75 (amending $29.003(a)(2) of
the Government Code to increase amount of fine within
municipal court's jurisdiction); Acts 1987, 70th Leg., ch.
641, at 4880 (amending 529.003 of the Government Code to
give municipal court jurisdiction in forfeiture of bail
bonds and personal bonds taken in criminal cases of which
the court has jurisdiction). Section 29.003(b) of the
Government Code states the municipal court's concurrent
jurisdiction with the justice court:
(b) The municipal court has *concurrent
jurisdiction with the iustice court of a
precinct in which the municinalitv is
located in all criminal cases arising under
state law that:
(1) arise within the territorial
limits of the municipality; and
(2) are punishable only by a fine
not to exceed $200. (Emphasis added.)
Gov't Code 529.003(b). Attorney General Opinion JM-422
concluded that the concurrent jurisdiction of the justice
court and the municipal court of a city located within the
justice precinct made the two offices incompatible. This
conclusion did not apply to an individual who serves as
municipal judge of a city located in one county precinct
and as a justice of the peace in another precinct. See
aenerally Gov't Code 529.064(a) (municipal judge of home
rule city selected under city charter provisions):
530.204(b) (judge of Longview municipal court of record
need not be resident of city); 530.294(b) (judge of
Marshall municipal court of record need not be resident of
city). Attorney General Opinion JM-422 addressed the
question asked, and its answer was limited to the circum-
stances stated in that question.
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Turning to your request for reconsideration, we
believe that this opinion incorrectly applied the test for
incompatibility to the holding of these two offices. The
common law doctrine of incompatibility prevents one person
from holding two offices if the duties are inconsistent or
in conflict, or if one office is subordinate to the other.
Thomas v. Abernathv Countv Line Indenendent School
Diski&, 290 S.W. 152 (Tex. Comm'n App. 1927, judgment
adopted). Attorney General Opinion JM-~422 described the
incompatibility between the two judicial posts as follows:
Courts of concurrent jurisdiction may
waive their jurisdiction in favor of each
other with respect to particular cases.
Flores v. State, 487 S.W.2d 122 (Tex. Crim.
APP. 1972). If one person acted as both
justice of the peace and city judge at the
same time, it would be within his power to
manipulate the income of the courts over
which he presided to the advantage or
disadvantage of either the county or the
city -- to both of which he would owe a duty
of collection. The reason is, justices of
the peace are required to account to the
county treasurer for the fines collected by
his court, whereas fines collected by city
judges go into city coffers. See V.T.C.S.
art. 1619; Code Crim. Proc. art. 45.06. By
waiving the jurisdiction of the court in
favor of the other court, the 'justice of
the peace/city judge' could enrich one
governmental entity at the expense of the
other, depending, perhaps, on which of. them
used such fees to compensate the officer
collecting them. m Attorney General
Opinion C-718 (1966).
It is not correct, therefore, to say that
neither court has any right or power to
interfere with the other.
Attorney General Opinion JM-422 at 5.
The relevant discussion in Plores v. State, 487
S.W.2d 122 (Tex. Crim. App.) concerns article 4.16 of the
Code of Criminal Procedure, which provides:
When two or more courts have concurrent
.jurisdiction of any criminal offense, the
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court in which an indictment or a complaint
shall first be filed shall retain
jurisdiction except as provided in Article
4.12 [precinct in which defendant is to be
tried in justice court].
Code Crim. Proc. art. 4.16. Flores said that the first
court legally taking jurisdiction of an offense continues
to have exclusive jurisdiction thereof, but the
jurisdiction can be voluntarily surrendered by dismissal
of the charge, and the second court may proceed to try the
alleged offender. It pointed out that article 4.16 of the
Code of Criminal Procedure was intended to prevent any
confusion or contention between different courts having
concurrent jurisdiction.
On reconsideration, we do not believe that the
offices of municipal judge and justice of the peace are
rendered incompatible by virtue of article 4.16 of the
Code of Criminal Procedure. The judge does not control
the filing of a complaint. The complainant, who may be a
law enforcement officer, a prosecutor, or a private
citizen, files the complaint and determines which of two
courts with concurrent jurisdiction will have jurisdiction
of the case. u Code of Crim. Proc. arts. 2.13, 15.04,
15.05, 45.01, 45.13, 45.16, 45.17. See, e a Attorney
General Opinion C-718 (1966); O-3969 (1941): "
To manipulate the income of the courts, the office
holder would have to refuse to file complaints in one
court and instruct the complainant to file in the other.
If he did so, he would not in fact be performing the
duties of either office. The legally required duties of
the offices are not in'conflict despite the possibility of
such conduct on the part of the officeholder.
None of the authorities cited in Attorney General
Opinion JM-422 state reasons why the concurrent
jurisdiction of two courts would bring the duties of the
two judicial officers into conflict. Two 1913 opinions
stated without explanation that the offices would be
incompatible because of their concurrent jurisdiction.
Attorney General Opinion (to Mr. A.C. Dunn, March 14,
1913); Attorney General Opinion (to Hon. Philip P. Long,
October 3, 1913); 1912-1914 Biennial Report of the
Attorney General 722-24. Attorney General Opinion O-2055
(1940), however, concluded that the concurrent
jurisdiction exercised by the justice court and the
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municipal court did not render the offices incompatible
because:
Neither office is accountable to, under the
dominion of, or subordinate
. . to the other:
... .
Deitner nas anv riant or Dower to interfere
yith the other in th oerforma of anv
Q&y. An appeal fromeeither c% has no
relation to.the other, but is independently
to other courts. (Emphasis added.)
Attorney General Opinion O-2055 (1940).
Attorney General Opinion JM-422 gave another reason
for concluding that a municipal judge could not serve as a
justice of the peace with concurrent jurisdiction. It
relied on Attorney General Opinion WW-1359 (1962) which
held that one person might not hold the office of justice
of the peace, precinct 1, place 1 and the office of
justice.of the peace, precinct 1, place 2 at the same
time. The 1962 opinion stated as follows:
There have been a number of cases and
Attorney General's Opinions which hold that
one person may hold one of the enumerated
offices in Section 40, Article XVI, Texas
Constitution, and some other office of a
different character, so long as the two
offices are not incompatible. But we have
no case which holds that one person may hold
the two offices of Justice of the Peace
within the same precinct at the same time.
Section 10, Article V, Texas Constitution,
states that in Justice precincts in which
there may be a city of 8,000 inhabitants,
'there shall be elected two Justices of the
Peace.' If Judge George could hold both
offices at the same time, it would not
comply with the requirement of 'two'
Justices of the Peace. The number of
Justices of the Peace in Precinct 1 may be
reduced to a single Justice of the Peace,
but this can only be done by the
Commissioners Court. veridith v. Sharp
sunra. Since the Commissioners Court ok
Denton County has not yet seen fit so to do,
we must construe Sec. 40, Art. XVI, and Sec.
18, Art. V, Texas Constitution, together,
and hold that while a Justice of the Peace
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may hold some other office not incompatible
with the office of Justice of the Peace, he
may not hold the offices of Justice of the
Peace, Precinct 1, Place 1 and Justice of
the Peace, Precinct 1, Place 2 at the same
time.
Attorney General Opinion WW-1359 at 6.
Attorney General Opinion WW-1359 did not state that
the offices of the justice of the peace, precinct 1, place
1 and justice of the peace, precinct 1, place 2 were
incompatible. The references as to incompatibility may
have merely stated the usual rule on dual office holding,
as background for the particular case under consideration.
See. e.a., Attorney General Opinion O-902 (1939).
The instance of dual office-holding under discussion
in Attorney General Opinion WW-1359 does not in fact
violate the common law doctrine of incompatibility as
recognized in Texas. &= Attorney General Opinion JM-203
(1904); Letter Advisory No. 114 (1975) and authorities
cited therein. The two offices at issue in Attorney
General Opinion. WW-1359 did not involve conflicting
duties, subordination of one office to another or
partially overlapping jurisdiction. There was instead .a
virtual identity of the duties and jurisdiction of the two
offices. If one person were to hold both place 1 and
place 2 in the same justice precinct, the offices would in
effect be consolidated, and place 2 would be abolished, in
violation of the constitutional requirement that two
justices of the peace be elected in precincts wherein a
city of 8,000 was located. See Attorney General Opinion
JM-174 (1984) (discussing 1983 amendment to article V,
section 18, of the Texas Constitution, which increased
city size to 10,000 and explaining role of commissioners
court in determining city size). The provision of an
extra justice in a precinct with a city of a certain size
probably reflects the practical need for judicial services
in an' area of population concentration. The time
restraints that might prevent one person from doing two
full-time jobs would be relevant in this case, although
they are not relevant to common law incompatibility.
m Attorney General Opinion V-303 (1947). In our
opinion, Attorney General Opinion WW-1359 did not
overrrule Attorney General Opinion O-2055 sub silentio,
but instead dealt with a different dual office holding
problem. We withdraw the overruling of Attorney General
Opinion O-2055 by Attorney General Opinion JM-422.
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Attorney General Opinion JM-422 Cites PeODle ex rel
Goode11 v. Garrett, 237 P. 829 (Cal. Dist. Ct. App. 1925)
and State ex rel. Knox v. Hadlev, 7 Wis. 700 (1860) as
using reasoning similar to that in Attorney General
opinion WW-1359 to hold that one person could not at the
same time serve as a justice of the peace and a city judge
with overlapping jurisdiction. The "justices of the
peace" in these two cases were, however, elected from the
same geographical area as the city judges. They were not
justices of the peace elected by the voters of a county
precinct. State ex rel. Knox V. Hadley determined that
one person could not serve as "police justice" of the city
and at the same time serve as a justice of the peace of
that city. The city elected three justices of the peace
who were ward officers, and a police justice who served
the entire city. The court stated as follows:
We consider that the two offices are clearly
inCOmDatible with each other, and that one
person cannot and should not hold both of
them at the same time., In the plainest
terms the charter gives the city four
judicial officers of the grade of justice of
the peace; while if the relator could make
good his right to the office of police
justice, it would in fact have but three.
(Emphasis added).
7 Wis. at 707.
The court distinguished a Pennsylvania case which
held that the offices of associate judge of common pleas
and justice.of the peace were not incompatible, stating
that it was not analogous to the present case. Id.
(citing Commonwealth of Pennsvlvania v. Sheriff of
Northumberland Countv. Pa., 4 Serg. & Rawl. 275). The
court described the office of police justice and ward
justice of the peace as incompatible, but it was their
similarity, and not their conflicting duties, which
prevented one person from holding both offices. State ex
rel. Knox v. Hadley and Attorney General Opinion WW-1359
both deal with the same kind of dual office holding, while
the case before us is distinguishable.
In Peonle ex rel. Goode11 v. Garrett, a California
court concluded that one person could not serve as justice
of the peace of Santa Monica township and at the same time
as the police judge or "city justice of the peace" of the
city of Santa Monica. 237 at 832. A township in
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California is a legislatively created subdivision of a
county with certain powers of local government. Peonle v.
Tavlor, 120 Cal. Rptr. 762, 773, n. 21 (Cal. Ct. App.
1975). When Peonle ex rel. Goode11 v. Garrett was
decided, townships were the site of justices' courts. Id.
The civil jurisdiction of the police court of Santa Monica
was "coextensive with that of the Santa Monica township
co~rt.~~ Peoole ex rel . Go ode11 v. Garrett, 237 P. at 829.
VoextensiveB1 means "having the same spatial or temporal
scope or boundaries." Webster's Ninth New Collegiate
Dictionary 256 (1983). It is possible that the boundaries
of the city court and township court coincided. &g
aenerallv Fx oarte Romero, 278 P. 430 (Cal. 1929)
(discussing distinction between township justice court and
justice court of city having the same boundaries as
township).
Even if the city and township boundaries did not in
fact coincide, the court did not regard any difference as
important. In announcing its conclusion, the court said
that "the people of Santa Monica, gBeakina of the nlace as
both a citv and a townshin, are entitled" to two judicial
officers, not to two courts presided over by the same
person. 237 P. at 832 (emphasis added). Thus, the
California case follows the pattern of State ex rel. Knox
v. Hadlev and Attorney General Opinion WW-1359: the
people of a single jurisdiction are deprived of two
officers to which the statute entitles them.
The California court's statements on what did not
constitute incompatibility are noteworthy. It reviewed
the qualifications for holding each office, the
requirements as to when the courts had to be open to
transact business, and the concurrent and exclusive juris-
diction of each court. It then stated:
The foregoing will exhibit some of the
differences between the two tribunals over
which respondent now presides, and it must
be admitted that under the many authorities
bearing upon the subject thev nrobablv
furnish little. if anv. weiaht in imnellinq
to the view tha th offices are not
COmDatible. (Hmihasiz %ed.)
237 P. at 832. Thus, the concurrent jurisdiction of the
two courts furnished "little, if any, weight" for the
conclusion that the offices were incompatible. The court
instead relied on a statute which provided that the
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officers of a township included two justices of the peace,
01, in townships containing cities in which police judges
were elected, one justice of the peace. Id. The court
concluded that the people of Santa Monica, speaking of it
"as both a city and a township,11 were entitled to have two
officers and not one officer exercising two offices.
Attorney General Opinion WW-1359 is thus consistent
with out-of-state cases protecting the residents of a
single jurisdiction in their right to have the exact
number of local judicial officers to which a statute
entitles them. See also In re Corum, 62 P. 661 (Kan.
1900) (statutory prohibition against one person holding
office of police judge and justice of the peace at the
same time); but see State ex rel. Crawford v. Anderson,
136 N.W. 128 .(Iowa 1912) (one person could not serve as
mayor-judge of incorporated city and as justice of peace
of township not coextensive with city). The Attorney
General Opinion WW-1359 moreover concerns two elective
candidates. Thus, the voters' interest in having two
justices in the precinct may also underlie the result in
Attorney General Opinion WW-1359.
The issue before us involves judicial offices of a
city and of a county precinct. Neither the residents of
the city nor the residents of the precinct can claim they
are entitled to have two judicial officers or complain
that they are served by one court instead of two. The
geographical and subject matter jurisdiction of each court
is sufficiently distinct that the two courts will retain
their identity even though one person serves as judge of
both. Thus, the problem addressed in Attorney General
Opinion WW-1359 does not arise here. To the extent that
Attorney General Opinion WW-1359 protects the interest~of
voters, rather than of all residents, the present case is
further distinguishable, since it concerns only appointed
municipal judges. m Gov't Code 529.004.
The legislature has enabled home rule cities and
cities at certain population levels to increase the
municipal court's capacity to serve the residents. Home
rule cities may appoint alternate municipal judges or may
establish additional panels or divisions of the municipal
court to be presided over by an associate judge. Gov't
Code 5529.004, 29.007. Cities of a certain population may
establish additional municipal courts. Gov't Code
§#2g.lol, 29.102; gee also Gov't Code 529.103 (city of El
Paso may establish additional courts). The legislature
has authorized many cities to increase the number of
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judges serving in their municipal courts. Thus, these
cities have the flexibility necessary to meet local needs.
If a smaller city finds that it can serve local needs by
appointing a justice of the peace to serve as part time
municipal judge, we do not believe any legislation dehies
it this method of fitting municipal court. services to
local needs. &S Tex. Const. art. V, 518 (requiring "one
Justice of the Peace" to be elected in each precinct);
Gov't Code g29.004 (providing for election or appointment
of the "judge of the municipal courtlO). The answer to the
second question in Attorney General Opinion JM-422 is
overruled. The doctrine of incompatibility does not
prevent a justice of the peace from holding at the same
time the office of part time municipal judge for a city
located within the precinct.
SUMMARY
The doctrine of incompatibility does
not prevent a justice of the peace from
holding at the same time the office of part
time appointed municipal judge for a city
located within the precinct. The discussion
of question 2 of Attorney General Opinion
m-422 (1986) and its finding of incompati-
bility under these circumstances is over-
ruled. The overruling of Attorney General
Opinion O-2055 (1940) is withdrawn.
JIM MATTOX
Attorney General of Texas
MARYRELLRR
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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