Ger&3Malm
Attozlley
General
Hon. E. P. Jennings, County Auditor
Hardin County
Kountse,, Texas
Dear Sir:
Opinion No. O-2055
Re: May a justice of the peace qualify and
serve as the recorder or judge of the
corporation court and still hold his of-
fice as justice of the peace.
We are in receipt of your letter of recent date
in which you request the opinion of this department,
touching the question of whether a justice of the
peace may qualify and serve as the recorder or judge
of a corporation court and still hold the office of
justice of the peace; if not, whether a justice of the
peace, who qualifies was recorder or judge of the cor-
poration court, thereby resigns from the office of
justice of the peace.
The term "Recorder" and "Judge", as applied
to the corporation court, are, of course, one and the
same. Article 1196, Revised Civil Statues of Texas.
That a person who is justice of the peace may
also qualify and serve as the recorder of the corpora-
tion court, under Article 16, Section 40 of the Consti-
tution, has been clearly resolved by the courts of
Texas.
The Supreme Court through Mr. Justice Gaines,
in the case of GAAL v. TOWNSEND, 77 Tex. 464. 14 S.W.
365, has siad:
11* * *depends upon the proper construction
of Section 40 of Article 16 of the present
Constitution. That section is as follows:
'NO person shall hold or exercise at the same
Hon. E. P. Jennings, County Auditor, page 2
time more than one civil office of emolument,
except that of justice of the peace, county
commissioner, notary public and postmaster,
unless otherwise specially provided.' Does
this mean that an incumbent can hold either
of the offices named, and at the same time
any other office, or that he can only hold
two offices when both are amoung those spe-
cially designated. We think the former is
the proper construction * * * It is clear
that under this statute any justice of the
peace might hold another office. Howell vs.
Wilson, 16 Tex. 59".
The Court of Criminal Appeals in the case of
LUERA vs. STATE, 63 S.W. (2d) 699, likewise holds:
"The appellant moved to quash the search
warrant, and amoung other grounds set up was
that the justice of the peace who purported to
swear the affiants to the affidavits for search
warrants was not a qualified and acting legal
justice of the peace nor de facto justice of
the peace of Dallum County, because at the
time of the filing of the affidavit and the
issuing of the search warrant said justice of
the peace had qualified and was also acting
as recorder of the corporation court of the
city of Dalhart. The record shows that the
justice of the peace had been elected or ap-
pointed justice of the peace of Dalhart and
had also been appointed as recorder of the
corporation court of the town of Dalhart and
was serving in both capacities at the time
the affidavit was made. Article 16, s 40,
of the Constitution, provides that 'no person
shall hold or exercise, at the same time, more
than one civil office of emolument, except
that of justice of the peace, county conunission-
er, notary public and postmaster,' etc. It
will therefor be seen that under the Consti-
tution there is nothing prohibiting the justice
of the peace from holding or exercising more
than one civil office of emolument."
Ron. E. P. Jennings, County Auditor, page 3
In addition to the constitutional prohibition
against the holding of two civil offices of emolument
our courts have also, of course, involked the common
law rule that two offices which are incompatible may
not be held by the same person. No case in Texas
however, has invoked this rule pertaining to the two
offices of justice of the peace and recorder of the
corporation court, or for that matter, as to either of
the offices excepted in Article 16, Section 40 of the
Constitution, and any other office.
We note, nevertheless, that under date of March
14, 1913 and October 3, 1913, this department held in
letter opinions by Mr. C. W. Taylor, Assistant Attorney
General, that the offices of justice of the peace and
judge of the corporation court may not be held by one
person on the ground that the offices are incompatible,
notwithstanding the office of justice of the peace is
relieved by Article 16, Section 40 of the Constitution
from the rule inhibiting the holding of two civil of-
fices of emolument.
It is, however, our opinion that the force of
the decision in the Luera case, supra. decided, of course,
since the 1913 opinions by this department, it necessar-
ily that the holding of the offices of justice of the
peace and recorder of the corporation court by one per-
son is not inhibited by the rule of incompatibility.
Moreover, we believe, independently of these
cases, that the ,offices of justice of the peace and re-
corder of the corporation court are not incompatible.
The only concievable basis for holding the offices in-
compatible would arise out of the fact that, in the
language of Article 1195, Revised Civil Statutes, the
corpotation court "shall also have concurrent jurisdic-
tion with any justice of the peace in any precinct in
which said city, town or village is situated in all
criminal cases arising under the criminal laws of this
state, in which punishment is by fine only, and where
the maximum of such fine may not exceed $200.00, and
arising within such territorial limit". This is itself,
in our opinion, does not render the offices incompati-
ble. Neither office is accountable to, under the
. .
Hon. E. P. Jennings, County Auditor, page 4
dominion of, or subordinate to the other; neither has
any right or power to interfere with the other in the
performance of any duty. An appeal from either court
has no relation to the other, but is independently to
other courts.
Accordingly, you are respectfully advised that
it is the opinion of the department that a person who
holds the office of justice of the peace may also qual-
ify and serve as the recorder, or judge, of a corpora-
tion court. Such answer renders unnecessary a discus-
sion of your second question.
The former opinions of this department to the
contrary are, of course, overrulled.
Trusting that we have adequately answered your
inquiry, we remain
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY: /s/ ZollieC. Steakley
Zollie C. Steakley, Assistant
ZCS:ob
APPRGvEBAPR I, 1940
/s/ GeraldC. Mann
m=GENERAL OFTEXAS
APPmvED
Opinion
czamlittee
BY: BWB
chai-