# TheAttorney General ofTexas

December 31, 1982 MARK WHITE Attorney General

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An Equal Opportunity1 Affirmative Action Employer Honorable MikeWestergren Nueces County Attorney Courthouse, Room206 Corpus Christi, Texas 78401 Opinion No. MW-589
Re: construction of article 1.83 of the Texas Family Code (persons authorized to conduct marriage ceremony)
DearMr. Westergren:
You have asked whether a person whoserved as ajustice of the peace for more than 15years andthen became acounty commissioner is authorized to perform marriage ceremonies under section 1.83 of the Texas Family Code. That section provides in part:

(a) The following persons are authorized to conduct marriage ceremonies:

.... (4) justices of the supreme court, judges of the court of criminal appeals, justices of the courts of appeals, judges of the district, county, and probate courts, judges of the county courts at law, courts of domestic relations andjuvenile courts, retired justices and judges of such courts, justices of the PfSlCl?, retired justices of the peace, and judges andmagistrates of the federal courts of this state. (b) For the purposes of this section, a retired judge of a county court, probate court, county court at law, court of domestic relations, or juvenile court or a retired justice of the peace is aperson whohas anaggregate of at least 15 years of service as judge of any court or courts or as justice of the peace and who has ceased to serve in that capacity. Theperson is considered as retired in the capacity of last
**SWVLX.** (Emphasis added).
Inyour request letter, you stated as follows:

p. 2188Honorable MikeWestergren - Page 2 NW-589)

Just what interpretation is to be given to the last sentence [of subsection (b)] is the precise question.... In the context of the entire paragraph the last sentence takes on at least two possible interpretations. One, does it meanthat no matter howmanyyears one served in a named judicial capacity that if he served in any other capacity after ceasing in such judicial capacity hewould not thereby be considered ‘retired in the capacity’ of such judicial service? Or, second, does the last sentence simply provide guidance as to what capacity one is retired in, if they have combined service in one or more namedjudicial capacities including that of justice of the peace in order to arrive at the full fifteen years of service required bysub-section 1.83.... There are three reasons why, in our view, the second of your two suggested interpretations is clearly the correct one. The first reason involves the word “capacity.” In our opinion, it is not coincidental that the legislature used this word in the last sentence of subsection (b) andin the preceding sentence. Thefact that it did indicates that it meant for the word to have the samemeaning in both contexts. In other words, the “capacity” to which the last sentence refers is one of the judicial “capacities” named in the preceding sentence. Wenote that if this were not the case, a question would arise as to what the word does mean in the context of the last sentence. Readbroadly enough, it could embrace virtually anyoffice or employment. The second reason involves legislative intent. Under section 1.83, a person who serves in more than one of the namedjudicial capacities mayaccumulate the 15years of judicial service that he needs to be “retired” within the meaning of this section by aggregating his years of service in each capacity. Without guidance, however, one could not know in which judicial capacity such person would be deemedtohave retired. Webelieve the legislature added the last sentence in subsection (b) to provide such guidance. This sentence makes it clear that aperson whoserved in more than one of the namedjudicial capacities andwhosatisfies the criteria set forth Iansubsection (b) shall be deemed to have “retired” in the judicial capacity in which he last served. Thus, a person who served as a probate court judge for 20years and then served as ajustice of the peace for one monthwould be a “retired justice of the peace” within the meaning of subsection (a)(4). The third reason also involves legislative intent. Under the first of your suggested interpretations, aperson whoserved in oneor more of the named judicial capacities could not be a “retired” justice, judge, or justice of the peace within the meaning of

p. 2189Honorable MikeWestergren - Page 3 (MW-589)

subsection (a)(4) if he later served in some "capacity" which is not listed in that subsection and then retired in that capacity. This would be true even if he served in the latter capacity for one day. Since we can perceive no reason why the legislature could have intended such an illogical result, we reject this interpretation as implausible. We believe that it would defeat the legislature's objective in enacting section 1.83, whereas the other interpretation is entirely consistent with that objective. See Citizens Bank of Bryanv. First State Bankof Hearne, 580 S.W.2d 344 (Tex. 1979) (where statutory language susceptible to two constructions, one of which would carry out and the other defeat its manifest purpose, it should receive the former construction).
In the example that you provided, the individual in question served as ajustice of the peace for 15years andis nolonger serving in that capacity. Asweconstrue the last sentence of subsection (b), his "capacity of last service" is justice of the peace. Wetherefore answer your question in the affirmative.
SUMMARY
Aperson whoserved as ajustice of the peace for more than 15years and then became a county cormnissioner is authorized to perform marriage ceremonies under section 1.83 of the Texas Family Code.

MARK WHITE Attorney General of Texas
JOHNW.FAINTER,JR. First Assistant Attorney General
RICHARDE. GRAYIII Executive Assistant Attorney General Prepared byJonBible Assistant Attorney General
APPROVED: OPINIONCOMMITTEE SusanL. Garrison, Chairman Jon Bible Rick Gilpin JimMoellinger

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