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 of this 

office. 

Dear Mr. Pipkin: 

Your letter requesting our opinion states that the State Judicial 

Qualifications Commission has received a number of complaints concerning the practice of justices of the peace delegating authority to clerks, 

secretaries and spouses to accept pleas of guilty, to levy fines on guilty 

pleas, to set bonds when a defendant pleads not guilty, etc.. You have 

asked our opinion as to the 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, 0 19 of the Constitution defines the limits 

of their 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, of which 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. 1815 
The Honorable Maurice S. Pipkin page 2 (H-386) 

regulations as ~may be prescribed by law; and 

appeals to the County Courts shall be allowed 

in ally cases decided in Justices’ Courts where 

the judgment 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 the justices 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 of a justice of the peace when he is absent or unable or unwilling 

to perform the duties of his 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 a justice to perform his duties or exercise 

his powers by delegation to a secretary, clerk or spouse. The maxim,‘-’ 

delegatas non potest delegare (the person to whom, 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, no writ); 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 of a 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. 1816 
The Honorable Maurice S. Pipkin page 2 (H-386) 

In our opinion the acts of a justice of the peace in accepting pleas 

of guilty~, levying fines on such pleas and setting bonds on pleas of not 

guilty are among the judicial functions which a justice of the peace may 

not delegate to his clerk, his secretary, his spouse, or anyone else. 

SUMMARY 

A justice of the peace may not delegate to any 

other person the exercise of judicial 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, 

p. ,1817