October 9, 1986 

Honorable Richard G. Morales, Sr. 

Webb County Attorney 

1104 Victoria 

Laredo, Texas 78040 

Dear Mr. Morales: 

Opinion No. m-558 

Re: Retirement status of a 

justice of the peace 

You request advice about the retirement of an individual 

presently serving as justice of the peace in Webb County. This 

individual lost the primacy election and wishes to retire before the 

general election. You ask whether he will officially be a retiree if 

he does so. 

Employees of a county which participates in the Texas County and 

District Retirement Systm are members of that retirement system. 

V.T.C.S. Title llOB, §52.:.Cll. We have been informed that Webb County 

participates in that retirement system. The relevant statute defines 

"employee" to include a person elected to an office in the county that 

normally requires service for not less than 900 hours a year and for 

which the person is compensated by the county. V.T.C.S. Title llOB, 

§51.001(6); see V.T.C.S. Title llOB, §51.001(14). A justice of the 

peace in WebEounty would therefore be a member of the Texas County 

and District Retirement System. See Attorney General Opinion H-202 

(1974). Justices of the peace arenot among the officers eligible for 

membership in the Judicial Retirement System of Texas. V.T.C.S. Title 

llOB, 942.001. See also P,ttorney General Opinion H-927 (1977). 

Section 54.102 of Title 1lOB. V.T.C.S., states eligibility 

requirements for retiring ,and receiving a service retirement annuity 

from the Texas County and District Retirement System. "Retirement" is 

defined as the withdraw.1 from service with a retirement benefit 

granted under the Texas County and District Retirement System. 

V.T.C.S. Title llOB, §51.001(10). The fact that the justice of the 

peace lost an election does not prevent him from retiring. Cf. 

Attorney General Opinion H-1230 (1978) (eligibility for assignment= 

special judge of retired district judge who was defeated for 

reelection). 

P 

Article XVI, section 17, of the Texas Constitution will, however, 

cause the justice of the reace to remain in office until his successor 

qualifies. This provisior states as follows: 

p. 2480 
Honorable Richard G. Morales, Sr. - Page 2~ (JM-558) 

Sec. 17. All officers within this State shall 

continue to perf,>rm the duties of their offices 

until their successors shall be duly qualified. 

Tex. Const. art. XVI, 517. Even though an officer resigns, this 

constitutional provision cperates to continue him in office until his 

successor qualifies. Plains Common Consolidated School District No. 1 -- 

of Yoakum County v. Hay'mrst, 122 S.W.2d 322 (Tex. Civ. App. - 

Amarillo 1938, no writ); ;$en v. Featherston, 69 S.W. 983 (Tex. Civ. 

App. 1902, writ ref'd). See also Attorney General Opinion M-742 

(1970). An officer who rstires from office will continue to hold his 

office until his successor ~qualifies. Attorney General Opinion H-1224 

(1978). Thus, the present justice of the peace will continue to serve 

in office until a successor qualifies. 

When the incumbent resigns. there will be a legal vacancy in his 

office that the comnissionars court may fill, even though article XVI, 

section 17, of the Texas Constitution prevents a physical vacancy in 

the office. The commiss.Lmers court has authority under article V, 

section 28, of the Texas %~nstitution and article 2355, V.T.C.S., to 

appoint someone to fill the, office of justice of the peace until the 

next general election. zee also Elec. Code 5202.002 (defining the 

"next general election" at which a vacancy may be filled). 

In the present case, ,the incumbent's term ends on December 31, 

1986. V.T.C.S. art. 17. If the commissioners court appoints someone 

to the vacancy created in ,the office of justice of the peace by the 

incumbent's resignation, the appointee is entitled to serve out the 

remainder of the term, anti to continue in office pursuant to article 

WI, section 17, of the Texas Constitution until his successor 

qualifies. Attorney Genecal Opinion M-742 (1970). The individual 

elected to the office of justice of the peace in the November 1986 

general election is not entitled to qualify and enter into his office 

prior to January 1, 1987. -- Id. 

You indicate that the individual who defeated the incumbent in 

the primary is not qualified to serve as justice of the peace because 

he has not attended the forty-hour course required by section 27.005 

of the Government Code. For that reason, you apparently do not 

believe he may be appointed to fill the incumbent's unexpired term 

should the incumbent resi@. Section 27.005 of the Government Code 

provides as follows: 

(a) For purposes of removal under Title 100, 

Revised Statutes, 'incompetency' in the case of a 

justice of the pwce who is not a licensed attorney 

includes failure f:o successfully complete: 

p. 2481 
Honorable Richard G. Moralas, Sr. - Page 3 ~(JM-558) 

(1) -- within one year after the date he is 

first electedl a 40-hour course in the performance of his &e; and 

(2) each Following year, a 20-hour course. 

(b) The coumes must be completed in an accredited state-rmpported school of higher education. (Emphasis added). 

A justice of the peace who is not a licensed attorney may be removed 

if he fails to successfully complete the course within a year after 

the date he is first elected. The statute does not require him to 

fulfill the educational requirement before he begins service as 

justice of the peace. 

You also inquire abcut section 1.83 of the Family Code which 

provides in part: 

(a) The folkwing persons are authorized to 

conduct marriage ceremonies: 

A 

. . . . 

(4) justkes of the supreme court, judges of 

the court of criminal appeals, justices of the 

courts of a:?peals, judges of the district, 

county, and p::obate courts, judges of the county 

courts at law, courts of domestic relations and 

juvenile courts, retired justices and judges of 

such courts, &stices of the peace, retired justices of the LIeace, and judges and magistrates 

of the federa:l courts of this state. 

(b) For the >,urposes of this section, a retired 

judge of a county court, probate court, county 

court at law, court of domestic relations, or 

juvenile court o:: a retired justice of the peace is 

a person who has an aggregate of at least 15 years 

of service as jZge of any court or courts or as 

justice of the p%e and who has ceased to serve in 

that capacity. '&e person is considered as retired 

in the capacity of last service. (Emphasis added). 

Under this provision, a liormer justice of the peace who served at 

least 15 years in that capacity is authorized to conduct marriage 

ceremonies. You state tha.t the incumbent justice of the peace meets 

the 15 year qualificatior~. Section 1.83 of the Family Code will 

p. 2482 
Honorable Richard G. Morales, Sr. - Page 4 (JM-558) 

therefore authorize him to perform marriages as a retired justice of 

the peace after he leaves n:Ls office. 

You wish to know who appoints him and authorizes him to perform 

marriage ceremonies. No appointment is necessary. The Family Code 

provision itself grants the power to conduct marriage ceremonies to a 

retired justice of the pea-s as that term is therein defined. 

SUMMARY 

A justice of the peace in Webb County is a 

member of the Texas County and District Retirement 

System and may retire under that system when he 

meets the eligibility requirements. Article XVI, 

section 17, of the Texas Constitution will cause 

him to continue :ln office despite retirement until 

his successor qualifies. 

Section 1.83 of the Family Code authorizes a 

retired justice of the peace with 15 years of 

service as a j,lstice of the peace to conduct 

marriage ceremon:.es .

Very J truly yours 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Ge:neral 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Conrmittee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2483