, 

THE AT ESERAI. 

June 8, 1989 

Honorable Stanley R. Watson 

County Attorney 

Hardeman County 

P. 0. Box 506 

Quanah, Texas 79252 

Opinion No. JM-1054 

Re: Location of justice 

of the peace offices in 

Hardeman County (RQ-1688) 

Dear Mr. Watson: 

You advise that the office space used by the justice of 

the peace is presently located in a building owned by the 

county that also houses the jail facility, the sheriff's 

office and offices of the local office of the Department of 

Public Safety. Information furnished by you reflects that 

the sheriff wants the justic,e of the peace moved to the 

courthouse. ~This background has prompted your question as 

to whether the location of that office is within the 

province of the sheriff or the commissioners court. 

Section 292.004 of the Local Government Code provides 

in pertinent part: 

may 

(a) The commissioners ;;rt of a county 

provide, inside municipality 

designated as the county seat, an auxiliary 

courthouse, a jail, a parking garage, a 

facility for district, county, and precinct 

administrative and judicial offices and 

courtrooms, or any facility related to the 

administration of civil or criminal justice. 

Information furnished by you reflects that the facility 

in question is known as the VVIaw Enforcement Building" and 

the sheriff., "as keeper of the jail, *I feels he is authorized 

to determine who occupies the building. 

Section 351.041(a) of the Local Government Code 

provides: 

The sheriff of each county is the keeper 

of the county jail. The sheriff shall safely 

keep all prisoners committed to the jail by a 

p. 5488 
Honorable Stanley R. Watson - Page 2 (JM-1054) 

lawful authority, subject to an order of the 

proper court. 

A justice of the peace is an elected constitutional 

official. Tex. Const. art. V, g 18. You advise that the 

justice of the peace conducts the business of his office, 

including the trial of cases in the room he occupies. The 

fact that the justice of the peace has quarters in the same 

building where the jail is located does not vest the sheriff 

with authority to remove the justice of the peace from the 

building. 

We next consider whether the sheriff is vested with 

authority to determine the location of the justice of the 

peace under section 291.003 of the Local Government Code 

(formerly article 6872, V.T.C.S.). Section 291.003 relates 

to control of the courthouse, providing "the county sheriff 

shall have charge and control of the county courthouse, 

subject to the regulations of the commissioners court." In 

Anderson v. Wood, 152 S.W.2d 1084, 1086 (Tex. 1941), the 

Texas Supreme Court construed article 6872 (now Local 

Government Code section 291.003), as follows: 

The above statute places the sheriff in 

charge and control of the court house merely 

for the purpose of keeping order and preserving the property. These dare ministerial 

duties that are in keeping with the duties of 

a peace officer. 

In Attorney General Opinion O-4747 (1942), it was concluded 

that the holding in Dodson v. Marshall, 118 S.W.Zd 621 (Tex. 

Civ. APP. - Waco 1938, writ ref'd w.o.m.), that the 

commissioners court had discretionary power to allow a 

person to operate a cold drink stand in an unused alcove in 

the courthouse was not authority for the sheriff to exercise 

the same power. Neither section 291.003 nor section 

351.041(a) vests the sheriff with authority to determine the 

location of the offices of the justice of the peace or of 

other precinct or county officials in the courthouse or 

other buildings operated by the county for its official 

business. 

Article V, section 18 of the Texas Constitution 

provides that the commissioners court "shall exercise such 

powers and jurisdiction over all county business, as is 

conferred by this Constitution and the laws of the State, or 

as may be hereafter prescribed.*' In Cosbv v. County 

Commissioners of Randall Countv, 712 S.W.Zd 246 (Tex. App. - 

Amarillo 1986, writ ref'd n.r.e.), it was noted that in the 

P. 5489 
Honorable Stanley R. Watson - Page 3 (JM-1054) 

exercise of powers conferred upon the commissioners court, 

the court has implied authority to exercise a broad 

discretion to accomplish the purposes intended. Section 

291.001 of the Local Government Code requires the 

commissioners court to provide a courthouse and offices for 

county officers. See also Koehler v. Earl, 14 S.W. 28 (Tex. 

1890) ; Alexander v. Svoboda, 297 S.W. 560 (Tex. Civ. App. - 

Galveston 1927), rev'd on other qrounds, 3 S.W.2d 423 (Tex. 

1928) (justice court terms held at times and places designated by commissioners court). The commissioners court is 

the active governing body of the county and has at least the 

implied authority to regulate the use of the courthouse and 

other county buildings. See Dodson v. Marshall, sunra. It 

follows that the commissioners court has the authority to 

determine whether the office of the justice of the peace 

shall be located in the courthouse or other county owned 

buildings. 

SUMMARY 

The location of the quarters in the 

courthouse or county owned buildings where 

the justice of the peace conducts trials and 

the business of that office is within the. 

province of the commissioners court of 

Hardeman County. I 

Very truly you J A iil?&t 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 5490