Hon..R. L. Fraaier

County Attorney Somervsll county Glen Rose, Texas

Dear Sir: 

### fune.14,1951 oplnlon no. v-1192. Re: Legality of one person holding at the same time the offices of justlce of the peace and county commlssionper
. You have requested reconsideration of Attorney General's Oplnlons 

### O-2640(lg40),v-828 (1949) andAttorney General's Opinion, Bk. 27, p. 207 (19131, published in Report and Opinions of Att'y Gen., 1912-191 , p. 727,

_ which hold that the sameperson maynot hold the offices of county canmissioner andjustice of the peace simultaneously for the reason that the duties of the two offices are incompatible.

Section 

### 26of Artiele'VII of the Constitution of Texas of 

### 1845,1861,and 

### 1866provided:

"Roperson shall hold or exercise at the sametime;more than one civil office of emolument, except that of Justice of the Peace." Section 

### 30of Article III of the Constitution of Texas of 

### 1869provided:

'Ii0 judge of any court of law or equity, Secretary of State, Attorney General, clerk of any court of record, sheriff or collector, or anyperson holding a lucrative office under the United States, or this State, or any foreign government, shall be eligible to the Lsglslature nor shall at the sametime hold or exercise any twooffices, agencies, or appointments of trust or profit under this State; Provided, that offices of militia to which there Is attached no annual salary, the office of postmaster, notary public, and the office of justlce of the peace, shall not be deemedlucrative; andthat oneperson may hold two or more county offices, if so provided by the Legislature."Hon. R. L. Frasler, page 2 (V-1192)

Section 40

### ofArticle XVI of the Constitution of Texas of 1876, as amended, provides:

‘Ro person shall hold or exercise, at the sametime, more than one Civil Office of emolument. except that of Justice of Peace. County Commissioner, Rotary Public and Postmaster, Officer of the Rational Guard. the Iiational GuardReserve. and the Officers Reserve Corps of the’Unlted States andenlisted menof the Rational Guard, the Rational GuardReserve, andthe Organized Reserves of the United States, andretired officers of the United States Army, Ravy, andMarine Corps, andretired warrant offleers , andretired enlisted men of the United States Army, Ravy, andMarine Corps, unless othemrise specially provided herein. Provided, that nothing in this Constitution shall be construed to prohibit an officer or enlisted manof the Rational Guard, and the Rational GuardReserve, or an officer in the Officers Reserve Corps of the United States, or an enlisted manin the Organized Reserves of the United States; or retired officers of the United States Army, Ravy, andMarine Corps, and retired warrant officers, andretired enlisted menof the United States Army, navy, andMarine Corps, from hold&g in conjunction with such office any other office or position of honor, trust or profit, under this State or the ~UnltedStates, or from voting at ‘anyElection; General, Special or Primary& in this State whenotherwise qualified. (Emphasis added throughout.) Theunderlined portion constituted Section 40 of Article XVIin 1876. Theremaining portion wasadded by amendmentsadopted in 1926and 1932. It Is noted that since 1845 the Constltutlons of Texas have prohibited the holding of twooffices of emolumentat the sametime by one person. ,Since 1845 the office of justice of the peace has been expressly exempt from its prov3slons. Since 1876 the office of county commissioner has likewise been expressly exempt from its provisions. Therefore, the provisions of Section 40of Article XVIinsofar as they pertain to your request have remained unchanged since 1876.Hon. R. L. Frasier, page 3 (v-1192)

Although the office of county cuzmissloner and the office of justice of the peace are exempt from the provisions of Section 40 of Article XVI, the commonlaw rule that one person cannot hold both offices at the same time if the duties of the office are inocmpatlble is recognized in this State. Thomasv. Abernathy County Line A 1 .

, % T::'l 45

In the latter case the SupremeCourt stated, at 84S.W.28 1007:

'The text, 34Tex. Jur. ,354, Sec. 19, summarizes the rule, thus: 'Having elected to accept and qualify for the second office, Ipso facto andas amatter of law, he vacates the first office. This Is true, where both offices are nlaces of emolument. renardless of whether they are incompatible, azd if the --nlis are incompatible there Is a vacation o first office regardless of whether both are ffi f emolumentwithin the meaning the ~~k&tut,on. Of Insuch circumstances the constitutional orovislon that all officers shall continue to perform the duties of their offices until a successor has been qualified does not apply.'" In anannotation to this case, 100A.L.R. at 1164, the rule is stated as follows:

"It is awell-settled rule of the commonlawthat a person cannot at one and the sametime rightfully hold two offices wNch are incomoatible, and, th he he accepts aauointment to t second%fke? which is incompatible, and qualifies, he vacates, or by implication resigns, the first office.' The commonlaw rule relative to the holding of two offices is sunrmarizedin Attorney General's Opinion v-303 (1947) as follows: "At commonlaw (adopted as the law of Texas in Article 1, R.C.S., whennot inconsistent with our statutes or Constitution), 'there is nolimit to the numberof 

### officeswhich may be held simultaneously by the sameperson,Hon. R. L. Prasier, page 4 (V-1192)

provided that neither of themis incanpatible with any other; andthis rule extends to offices of the highest grade, andwhich Involve, for their adequate performance, the greatest expenditure of time andlabor.' Throop, Public Officers, pa 33. It is stated in Vol. 2~(Rev.) McQulllin onMunicipal Corporations, at page 144, that, 'The sameperson mayhold different offices which are not incompatible, unless forbidden by laws8 43 Am.Jur. 153recites that: 'In the absence of express or implied statutory provisions to the contrary, an 

### officerwhoholds two or more separate and distinct offices, not Incompatible, Is entitled to the ccmpensation attached to each office.' Andin 46 Corpus Jurls, page 941, it says, 'At common law the holding of one office does not of itself disqualify the Incumbent from holding another office at the sametime, provided there Is no Inconsistency in the functions of the two offices In question

. . . TheInconsistency

. . . does not consist 

### inthe physical impossibility to discharge the duties of both offices;but lies rather in a conflict of interest, as where one is subordinate to the other

. . . or has the power to remove the incumbent of the other, or to audit the accounts of the other.''Meecbam onPublic Offices and Officers, p. 269, announces the rule to be thatr '.

. . the merephysical Impossibility of oneperson's -a?forming the duties of the two offices as&om the lack of time or the Inability to bs in twoplaces at the samemoment, is not the incompatibility here referred to. It must be an inconsistency in the functions of the two offices, as judge and clerk of the samecourt, claimant andauditor, and the like.'" This principle of law is followed in practically every jurisdiction of this nation. See annotations in Note, 100A..-$.R. 1162.

It is apparent from the foregoing authorities that Section 40 of Article XVI of the Constitution was adopted as a limitation onthe commonlaw rule allowing. I

Hon. R. L. Prasier, page 

### 5 (V-1192)

one person to hold at the sametime two offices which are not Incompatible. See Bate, ,100A.L.R. at 117C. Section 40 of Article XVIprohibits the holding ,of two offices of emolumentat the sametime by one person even though the duties of the two offices maybe compatible. Certain offices are expressly exempt from its provisions, but as pointed out above, this exemption does not authorize the holding of twooffices the duties of which 

### me incompatible. Therefore, the remaining question to be determined is whether the duties of county commissioner andjustice of the peace are lncompatible

. It is the duty of the commissioners’ court to approve or disapprove the accounts of justices of the peace for fees in criminal actions. Art. 1052, V.C.C.P. It is the duty of the 

### commissioners’ court to fill vachncies aria& in the office of justice of the peace. Tex. Const. Art. V, Sec. 

### 28;Williams v. Castleman, 112 Tex. 193, 247 S.W. 263 (1922). It is the duty of the commissioners t court to~divide the county fro6 time to - time into justice precincts. Tex.. Const. Art. V, Sec. 

### 18. ers’ Other instances of supervision of the commissioncourt over justices of the peace might also be cited. It is therefore our opinion that the duties of county commissioner andjustice of the peace are inconpatible. SeeThomasv. Abernathy County Line School Dist., supra; buckles v. Board of Education of Polk Count& 272Ky. 431, 114S.W.2d 511 (1936).

In the brief which you submitted with your opinion request, you referred to the holding in Bluitt v. Stats, 

### 56Tex. Grim. 525, 121 S.W. 

### 168(1909), that a person might hold the offices of county. commissioner androad commlssioner at the sametime. In that case, a statute madethe county commissioners ex-officio road commissioners. Thecourt held that the county commissioners were”charged by lawwith the duty, authority, and obligation of giving attention to all matters affecting public roads in their respective counties, and the duties imposed onthe commissioners of Ellis County by this act comereasonably and seasonably within the general scope of their duties under the law.” This case comes within the rule announced in Kugle v. Glen Rose Ind. School Mst. Ro. 1, 50S.W.2d 

### 375(Tex.Civ.App. 1932) affirmed, Pruitt v. Glen Rose Ind. School Dist. IJo. 1, Luora:Hon. R. L. Frasier, page 6 (v-1192)

*It is doubtless Legislature to assign permissible for the to the county tax collector the duty of collecting the taxes of independent school districts, as Is done under the provisions of Revised Statutes, article 2792, for the collector In discharging such duties is not holding two offices, but Is merely performing extra duties assigned to the one office. First Baptist Church v. City of Fort Worth (Tex.Com.App.) 26S.W.(2d) 196; City of Houston v. Stewart, 99Tex. 67, S.W. 663; Powell v. Wilson, 16Tex. 59."87

See Jones v. Alexander,,122 Tex. 328, 59S.W.2d 1080 (1933).

For the reasons herein stated weaffirm the holding In Attorney General's Opinions O-2640 (1940), V-838 (lg&), andAttorney General's Opinion, Bk. 27, p. 207 (1913), andyou are advised that the sameperson maynot hold the of-_ ;;", &dounty commlssloner andjustice of the peace at the

* SUMMARY The sameperson maynot hold the offices of county commissioner andjustice of the peace at the sametime for the reason that the duties of the twooffices are incompatible. Thomasv. Abernathy County LLneInd. School Diet., 290SW 152 (l!

. * 27~ Pruitt v. Gl&'Rose 127' S~olPPDist. Noi 1 126T 1004 loo ALR. 1i58 (l&j; 4 84SW26 khAcl.e~ +. Boar& of Ed&&ion of Polk counts, 272 ICY. 31, 114sW2d 11 1 8

. . . APPROVED: J. C. Davis, Jr. County Affairs Mvlsion Jesse P. Luton, Jr. Reviewing Assistant Charles D. Mathews First Assistant JR:mw . . Yours very truly, PRICEDANIEL Attorney General

Bse 6lL%fJohn Reeves Assistant