The Attorney General of Texas 

December 31, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 76711. 2546 

512,475.2501 

Telex 9101874-1367 

Telecopier 5121475.0266 

1607 Main St.. Suite 1400 

Dallas, TX. 75201-4709 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

915/533-3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6966 

7131650.0666 

806 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

8061747-5236 

4309 N. Tenth. Suite B 

McA,,en, TX. 76501-1665 

5121662.4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 76205.2797 

5121225-4191 

An Equal Opportunity1 

Affirmative Action Employer 

Honorable Mike Westergren 

Nueces County Attorney 

Courthouse, Room 206 

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) 

Dear Mr. Westergren: 

You have asked whether a person who served as a justice of the 

peace for more than 15 years and then became a county 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 and juvenile courts, retired justices 

and judges of such courts, justices of the 

PfSlCl?, retired justices of the peace, and 

judges and magistrates 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 a person who has an aggregate 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. The person is 

considered as retired in the capacity of last 

SWVLX. (Emphasis added). 

In your request letter, you stated as follows: 

p. 2188 
Honorable Mike Westergren - 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 mean that 

no matter how many years one served in a named 

judicial capacity that if he served in any other 

capacity after ceasing in such judicial capacity 

he would 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 named judicial 

capacities including that of justice of the peace 

in order to arrive at the full fifteen years of 

service required by sub-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) and in the preceding sentence. The fact that it did 

indicates that it meant for the word to have the same meaning 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. We note 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. Read broadly enough, it could embrace virtually any office 

or employment. 

The second reason involves legislative intent. Under section 

1.83, a person who serves in more than one of the named judicial 

capacities may accumulate the 15 years 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 deemed to have retired. We believe the legislature added the 

last sentence in subsection (b) to provide such guidance. This 

sentence makes it clear that a person who served in more than one of 

the named judicial capacities and who satisfies the criteria set forth 

Ian subsection (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 20 years and then served as a justice of the 

peace for one month would 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, a person who served in one or 

more of the named judicial capacities could not be a “retired” 

justice, judge, or justice of the peace within the meaning of 

p. 2189 
Honorable Mike Westergren - 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 

Bryan v. First State Bank of 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 a justice of the peace for 15 years and is no longer serving 

in that capacity. As we construe the last sentence of subsection (b), 

his "capacity of last service" is justice of the peace. We therefore 

answer your question in the affirmative. 

SUMMARY 

A person who served as a justice of the peace 

for more than 15 years 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 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

p. 2190