,

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)

DearMr. Watson:

You advise that the office spaceused by the justice of the peace ispresently located ina 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 byyou reflects that the sheriff wants the justic,eof the peace moved to the courthouse. ~Thisbackground has prompted your question as towhether 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 inpertinent 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 fordistrict, 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 inquestion isknown as the VVIawEnforcement Building" and the sheriff.,"askeeper of the jail,*Ifeelshe isauthorized todetermine who occupies thebuilding.
Section 351.041(a) of the Local Government Code provides:
The sheriff of each county isthe keeper

of the county jail. The sheriff shall safely keep allprisoners committed to the jail by a

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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 ofhis office, including the trial of cases inthe roomhe occupies. The fact that the justice ofthe peace has quarters in the same building where the jail is located does notvest the sheriff with authority to remove the justice ofthe peace from the building.

We next consider whether the sheriff isvested 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 courthouse merely for the purpose ofkeeping order and preserving the property. These dare ministerial duties that are inkeeping with the duties of apeace officer.

InAttorney General Opinion O-4747 (1942), itwas concluded that theholding inDodson 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 acold drink stand inanunused alcove in the courthouse was not authority forthe sheriff to exercise the same power. Neither section 291.003 nor section 351.041(a) vests the sheriffwith authority todetermine the location of the offices of the justice of the peace or of other precinct or county officials inthe 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 ofRandall Countv, 712 S.W.Zd 246 (Tex.App. - Amarillo 1986,writ ref'd n.r.e.), itwas noted that in the

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exercise ofpowers conferred upon the commissioners court, the court has implied authority to exercise a broad discretion to accomplish thepurposes intended. Section 291.001 of the Local Government Code requires the commissioners court toprovide acourthouse and offices for county officers. See **also** Koehler v. Earl, 14S.W. 28 (Tex. 1890);Alexander v. Svoboda, 297 S.W. 560 (Tex.Civ.App. - Galveston 1927), rev'd onother 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 andhas at least the implied authority to regulate theuse 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 shallbe located inthe courthouse or other county owned buildings.

SUMMARY

The location of the quarters in the courthouse or county owned buildings where the justice of thepeace conducts trials and the business of that office is within the. province of the commissioners court of Hardeman County. I Very truly you 

# J iil?&t

A JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Tom **G. Davis**  Assistant Attorney General

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