October 9, 1986

HonorableRichard G. Morales, Sr. Webb CountyAttorney 1104Victoria Laredo, Texas 78040
Dear Mr. Morales: OpinionNo. m-558
Re: Retirement status of a justice of thepeace

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 officiallybe 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 thatWebb County participates in that retirement system. The relevant statute defines "employee"to includea 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 compensatedby 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 thereforebe a member of the Texas County and District Retirement System. See Attorney General Opinion H-202 (1974). Justices of thepeace arenot among the officers eligible for membership in the JudicialRetirement System **of** Texas. V.T.C.S. Title llOB, 942.001. See also P,ttorney GeneralOpinionH-927 (1977). Section 54.102 of Title 1lOB. V.T.C.S., states eligibility requirements for retiring ,andreceiving a service retirement annuity from the Texas County andDistrictRetirement 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) (eligibilityfor assignment= special judge of retired district judge who was defeated for reelection).

P ArticleXVI, section 17,of theTexas Constitutionwill, however,

cause the justice of the reace to remain in officeuntilhis successor qualifies. This provisior statesas follows:

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Sec. 17. All officerswithin this State shall continue to perf,>rmthe duties of their offices until their successorsshallbe duly qualified.
Tex. Const. art. XVI, 517. Even though an officer resigns, this constitutionalprovision cperates to continuehim in office until his successorqualifies. Plains Common ConsolidatedSchoolDistrictNo. 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 officerwho rstires from office will continue to hold his officeuntil his successor~qualifies.Attorney General OpinionH-1224 (1978). Thus, thepresent justice of thepeacewill continue to serve in officeuntil a successorqualifies. When the incumbent resigns. therewill be a legalvacancy in his office that the comnissionarscourtmay fill, even though articleXVI, section 17, of the Texas Constitutionprevents 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 vacancymay be filled).
In the present case, ,theincumbent's term ends on December 31, 1986. V.T.C.S. art. 17. If the commissionerscourt appoints someone to the vacancy created in ,theoffice of justice of the peace by the incumbent's resignation, the appointee is entitled to serve out the remainder of the term, antito 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 intohis 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 thepwce who isnot a licensedattorney includes failuref:osuccessfullycomplete:

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## (1) -- within one year after the date he is first electedl a 40-hour course in the performance of his &e; and (2) each Followingyear, a 20-hour course. (b) The coumes must be completed in an accredited state-rmpported school of higher education. (Emphasisadded).
A justice of the peace who is not a licensed attorneymay 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 inpart:

(a) The folkwing persons are authorized to conductmarriage 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 thepeace, retired justices of theLIeace,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 15years of service as jZge of any court or courts or as justice of thep%e andwho has ceased to serve in that capacity. '&eperson is consideredas retired in the capacityof last service. (Emphasisadded). Under this provision, a liormerjustice of the peace who served at least 15 years in that capacity is authorized to conduct marriage ceremonies. You state tha.tthe incumbent justice of the peace meets the 15 year qualificatior~. Section 1.83 of the Family Code will

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therefore authorize him to perform marriages as a retired justice of thepeace after he leaves n:Ls office.
You wish to know who appoints him and authorizeshim to perform marriage ceremonies. No appointment is necessary. The Family Code provision itself grants the power to conductmarriage ceremonies to a retired justice of thepea-s as that term is thereindefined.
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 Constitutionwill cause him to continue :ln officedespite retirementuntil his successorqualifies. Section 1.83 of the Family Code authorizes a retired justice of the peace with 15 years of service as a j,lsticeof the peace to conduct marriage ceremon:.es . Very 

# J trulyyours

JIM MATTOX Attorney General of Texas
JACKHIGHTOWER First AssistantAttorneyGe:neral
MARY KELLER ExecutiveAssistantAttorney General
RICK GILPIN Chairman,Opinion Conrmittee Preparedby SusanL. Garrison AssistantAttorney General

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