August 29, 1974

The Honorable Maurice S. Pipkin Executive Director, State Judicial Qualifications Commission P. 0. Box 12265, Capitol Station Austin, Texas 78711 Opinion No. H- 386 Re: Whether Justice of the Peace may delegate responsibility to employees ofthis office. Dear Mr. Pipkin:

Your letter requesting our opinion states thatthe State Judicial Qualifications Commission has received a number of complaints concerning the practice ofjustices of the peace delegating authority to clerks, secretaries and spouses to accept pleas ofguilty, to levy fines on guilty pleas, to set bonds when a defendant pleads not guilty, etc.. You have asked our opinion as tothe propriety of this practice which you have found to exist in some instances.

The office of justice of the peace is created by Article 5, §U, Texas Constitution. Article 5, 019of the Constitution defines the limits oftheir jurisdiction.Sec. 19< Justices of the peace shall have

jurisdiction in criminal matters of,all cases where the penalty or fine to be imposed by law may not be more than for two hundred dollars, and in civil matters of all cases where the amount in controversy is two hundred dollars or ‘less, exclusive of interest, ofwhich exclusive original jurisdiction is not given to the District or County Courts; and such other jurisdiction, criminal and civil, as may be provided by law, under such

p. 1815The Honorable Maurice S. Pipkin page 2 (H-386)

regulations as ~maybe prescribed by law; and appeals to the County Courts shall be allowed in allycases decided in Justices’ Courts where thejudgment is for more than twenty doll,ars exclusive of costs; and,in all criminal cases under such regulations as may be prescribed by law. And thejustices of the peace shall be .ex officio notaries public. And they shall hold their courts at such times and places as may be provided by law. Pursuant to the constitutional authorization, the Legislature has provided by law.for jurisdiction in numerous other situations. See, for example, Articles 2385 and 2386, V.T. C.S.‘; Articles 4.11, 16.15, 49.01, 50.01, V. T. C. C.P.

Furthermore, the’Legislature has provided for the performance of the duties ofajustice ofthe peace when he is absent or unable or unwilling to perform the duties ofhis office himself, Article 2377, TV.T. C.S., or when he is unable to perform them because of sickness or injury or other disqualification. Article 2399, V. T. C.S.

No authority exists for ajustice to perform his duties or exercise his powers by delegation to a secretary, clerk or spouse. The maxim,‘

-’ delegatas non potest delegare (the person towhom, an office or duty is delegated cannot lawfully devolve the duty on,another unless expressly authorized to do so) is applicable to this situation. Newsom v. Adams, 451 S.W. 2d 948 (Tex. Civ. App., Beaumont 19’70, nowrit); Moody v. Texas 373 S.W. 2d 793 (Tex. Civ. App., Austin, 1963, writ ref’d., n.r. e.); 47 TEX. JUR. 2d Public Officers, $114, p. 149, et seq.

Those powers and duties ofa public officer which are judicial in nature, as distinguished from those ,which are ministerial, cannot be delegated to another. Padgett v. Young County, 204 S.W. 1046 (Tex. Civ. App., Ft. Worth 1918, writ dism’d); Navarro County v. Tullos, 237 S.W. 982 (Tex. Civ. App., Dallas 1922, err. ref’d.).

p. 1816The Honorable Maurice S. Pipkin page 2 (H-386)

In our opinion the acts ofajustice of the peace in accepting pleas ofguilty~, levying fines on such pleas and setting bonds onpleas ofnot guilty are among thejudicial functions which ajustice ofthe peace may not delegate to his clerk, his secretary, his spouse, or anyone else. SUMMARY A justice ofthe peace may not delegate to any other person the exercise ofjudicial powers and duties devolved upon him by the Constitution or statutes of the state.

APPVVED:



# &$I@ DAVID M. KENDALL, Chairman Opinion Committee Very truly yours,

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