Untitled Texas Attorney General Opinion ( 1951 )

fune.14, 1951
Hon..R. L. Fraaier oplnlon no. v-1192.
County Attorney
Somervsll county Re: Legality of one person
Glen Rose, Texas holding at the same
time the offices of
justlce of the peace
and county commlssion-
Dear Sir: per.
You have requested reconsideration of Attorney
General's Oplnlons O-2640 (lg40),v-828 (1949) and At-
torney General's Opinion, Bk. 27, p. 207 (1913 , published
in Report and Opinions of Att'y Gen., 1912-191 1 , p. 727, _
which hold that the same person may not hold the offices
of county canmissioner and justice of the peace simultane-
ously for the reason that the duties of the two offices
are incompatible.
Section 26 of Artiele'VII of the Constitution
of Texas of 1845, 1861, and 1866 provided:
"Ro person shall hold or exercise
at the same time;more than one civil of-
fice of emolument, except that of Justice
of the Peace."
Section 30 of Article III of the Constitution
of Texas of 1869 provided:
'Ii0 judge of any court of law or equity,
Secretary of State, Attorney General, clerk
of any court of record, sheriff or collector,
or any person holding a lucrative office un-
der the United States, or this State, or any
foreign government, shall be eligible to the
Lsglslature nor shall at the same time hold
or exercise any two offices, agencies, or ap-
pointments of trust or profit under this
State; Provided, that offices of militia
to which there Is attached no annual salary,
the office of postmaster, notary public, and
the office of justlce of the peace, shall not
be deemed lucrative; and that one person may
hold two or more county offices, if so pro-
vided by the Legislature."
Hon. R. L. Frasler, page 2 (V-1192)
Section 40 of Article XVI of the Constitution
of Texas of 1876, as amended, provides:
‘Ro person shall hold or exercise, at
the same time, more than one Civil Office
of emolument. except that of Justice of
Peace. County Commissioner, Rotary Public
and Postmaster, Officer of the Rational
Guard. the Iiational Guard Reserve. and
the Officers Reserve Corps of the’Unlted
States and enlisted men of the Rational
Guard, the Rational Guard Reserve, and the
Organized Reserves of the United States,
and retired officers of the United States
Army, Ravy, and Marine Corps, and retired
warrant of fleers , and retired enlisted men
of the United States Army, Ravy, and Marine
Corps, unless othemrise specially provided
herein. Provided, that nothing in this
Constitution shall be construed to pro-
hibit an officer or enlisted man of the
Rational Guard, and the Rational Guard Re-
serve, or an officer in the Officers Reserve
Corps of the United States, or an enlisted
man in the Organized Reserves of the United
States; or retired officers of the United
States Army, Ravy, and Marine Corps, and
retired warrant officers, and retired en-
listed men of the United States Army, navy,
and Marine Corps, from hold&g in conjunc-
tion with such office any other office or
position of honor, trust or profit, under
this State or the ~Unlted States, or from
voting at ‘any Election; General, Special
or Primary& in this State when otherwise
qualified. (Emphasis added throughout.)
The underlined portion constituted Section 40
of Article XVI in 1876. The remaining portion was added
by amendments adopted in 1926 and 1932. It Is noted that
since 1845 the Constltutlons of Texas have prohibited the
holding of two offices of emolument at the same time by
one person. ,Since 1845 the office of justice of the peace
has been expressly exempt from its prov3slons. Since 1876
the office of county commissioner has likewise been ex-
pressly exempt from its provisions. Therefore, the provi-
sions of Section 40 of Article XVI insofar as they pertain
to your request have remained unchanged since 1876.
Hon. R. L. Frasier, page 3 (v-1192)
Although the office of county cuzmissloner and
the office of justice of the peace are exempt from the
provisions of Section 40 of Article XVI, the common law
rule that one person cannot hold both offices at the same
time if the duties of the office are inocmpatlble is rec-
ognized in this State. Thomas v. Abernathy County Line
A 1 .
, % T::'l 45
In the latter case the Supreme Court stated, at
84 S.W.28 1007:
'The text, 34 Tex. Jur. ,354, Sec. 19,
summarizes the rule, thus: 'Having elected
to accept and qualify for the second office,
Ipso facto and as a matter of law, he vacates
the first office. This Is true, where both
offices are nlaces of emolument. renardless
of whether they are incompatible, azd if the
are incompatible there Is a vacation--nliso
first office regardless of whether both are
ffi f emolument within the meaning Of
the ~~k&tut,on. I n such circumstances the
constitutional orovislon that all officers
shall continue to perform the duties of their
offices until a successor has been qualified
does not apply.'"
In an annotation to this case, 100 A.L.R. at
1164, the rule is stated as follows:
"It is a well-settled rule of the com-
mon law that a person cannot at one and the
same time rightfully hold two offices wNch
are incomoatible, and, th he he accepts
aauointment to t second%fke? which is
incompatible, and qualifies, he vacates, or
by implication resigns, the first office.'
The common law rule relative to the holding of
two offices is sunrmarized in Attorney General's Opinion
v-303 (1947) as follows:
"At common law (adopted as the law of Texas
in Article 1, R.C.S., when not inconsistent
with our statutes or Constitution), 'there is
no limit to the number of offices which may
be held simultaneously by the same person,
Hon. R. L. Prasier, page 4 (V-1192)
provided that neither of them is incanpati-
ble with any other; and this rule extends
to offices of the highest grade, and which
Involve, for their adequate performance,
the greatest expenditure of time and labor.'
Throop, Public Officers, pa 33. It is stated
in Vol. 2~(Rev.) McQulllin on Municipal Cor-
porations, at page 144, that, 'The same per-
son may hold different offices which are not
incompatible, unless forbidden by laws8 43
Am. Jur. 153 recites that: 'In the absence
of express or implied statutory provisions
to the contrary, an officer who holds two
or more separate and distinct offices, not
Incompatible, Is entitled to the ccmpensa-
tion attached to each office.' And in 46
Corpus Jurls, page 941, it says, 'At common
law the holding of one office does not of
itself disqualify the Incumbent from hold-
ing another office at the same time, pro-
vided there Is no Inconsistency in the
functions of the two offices In question
. . . The Inconsistency . . . does not
consist in the physical impossibility to
discharge the duties of both offices;but
lies rather in a conflict of interest, as
where one is subordinate to the other . . .
or has the power to remove the incumbent of
the other, or to audit the accounts of the
other.'
'Meecbam on Public Offices and Officers,
p. 269, announces the rule to be thatr '. . .
the mere physical Impossibility of one person's
-a?forming the duties of the two offices as&om
the lack of time or the Inability to bs in
two places at the same moment, is not the in-
compatibility here referred to. It must be an
inconsistency in the functions of the two of-
fices, as judge and clerk of the same court,
claimant and auditor, and the like.'"
This principle of law is followed in practical-
ly every jurisdiction of this nation. See annotations in
Note, 100 A..-$.R. 1162.
It is apparent from the foregoing authorities
that Section 40 of Article XVI of the Constitution was
adopted as a limitation on the common law rule allowing
. I
Hon. R. L. Prasier, page 5 (V-1192)
one person to hold at the same time two offices which
are not Incompatible. See Bate, ,100 A.L.R. at 117C.
Section 40 of Article XVI prohibits the holding ,of two
offices of emolument at the same time by one person
even though the duties of the two offices may be com-
patible. Certain offices are expressly exempt from its
provisions, but as pointed out above, this exemption
does not authorize the holding of two offices the duties
of which me incompatible. Therefore, the remaining
question to be determined is whether the duties of coun-
ty commissioner and justice of the peace are lncompati-
ble .
It is the duty of the commissioners’ court to
approve or disapprove the accounts of justices of the
peace for fees in criminal actions. Art. 1052, V.C.C.P.
It is the duty of the commissioners’court to fill va-
chncies aria& in the office of justice of the peace.
Tex. Const. Art. V, Sec. 28; Williams v. Castleman, 112
Tex. 193, 247 S.W. 263 (1922). It is the duty of the
commissioners t court to ~divide the county fro6 time to -
time into justice precincts. Tex.. Const. Art. V, Sec.
18. Other instances of supervision of the commission-
ers ’ court over justices of the peace might also be
cited. It is therefore our opinion that the duties of
county commissioner and justice of the peace are incon-
patible. See Thomas v. Abernathy County Line School
Dist., supra; buckles v. Board of Education of Polk
Count& 272 Ky. 431, 114 S.W.2d 511 (1936).
In the brief which you submitted with your opin-
ion request, you referred to the holding in Bluitt v. Stats,
56 Tex. Grim. 525, 121 S.W. 168 (1909), that a person might
hold the offices of county. commissioner and road commlssion-
er at the same time. In that case, a statute made the coun-
ty commissioners ex-officio road commissioners. The court
held that the county commissioners were”charged by law with
the duty, authority, and obligation of giving attention to
all matters affecting public roads in their respective coun-
ties, and the duties imposed on the commissioners of Ellis
County by this act come reasonably and seasonably within the
general scope of their duties under the law.” This case
comes within the rule announced in Kugle v. Glen Rose Ind.
School Mst. Ro. 1, 50 S.W.2d 375 (Tex.Civ.App. 1932) af-
firmed, Pruitt v. Glen Rose Ind. School Dist. IJo. 1, Luora:
Hon. R. L. Frasier, page 6 (v-1192)
*It is doubtless permissible for the
Legislature to assign to the county tax col-
lector the duty of collecting the taxes of
independent school districts, as Is done un-
der the provisions of Revised Statutes, ar-
ticle 2792, for the collector In discharging
such duties is not holding two offices, but
Is merely performing extra duties assigned to
the one office. First Baptist Church v. City
of Fort Worth (Tex.Com.App.) 26 S.W.(2d) 196;
City of Houston v. Stewart, 99 Tex. 67, 87
S.W. 663; Powell v. Wilson, 16 Tex. 59."
See Jones v. Alexander,,122 Tex. 328, 59 S.W.2d 1080 (1933).
For the reasons herein stated we affirm the hold-
ing In Attorney General's Opinions O-2640 (1940), V-838
(lg&), and Attorney General's Opinion, Bk. 27, p. 207 (1913),
and you are advised that the same person may not hold the of-_
;;", &dounty commlssloner and justice of the peace at the
*
SUMMARY
The same person may not hold the of-
fices of county commissioner and justice of
the peace at the same time for the reason
that the duties of the two offices are in-
compatible. Thomas v. Abernathy County
LLne Ind. School Diet., 290 S W 152 (l!
. * 27~ Pruitt v. Gl&'Rose 127'
S~olPPDist. Noi 1 126 T 4 84 S W 26
1004 loo A L R. 1i58 (l&j; khAcl.e~ +.
Boar& of Ed&&ion of Polk counts, 272 ICY.
31, 114 sW2d. . 11 1 8 .
..
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Mvlsion Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Bs 6lL%f-
Charles D. Mathews e John Reeves
First Assistant Assistant
JR:mw