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) and Attorney General's Opinion, Bk. 27, p. 207 (1913 

1 

, published 

in Report and Opinions of Att'y Gen., 1912-191 , p. 727, _ 

which hold that the same person may not hold the offices 

of county canmissioner and justice of the peace simultaneously for the reason that the duties of the two offices 

are incompatible. 

Section 26 of Artiele'VII of the Constitution 

of Texas of 1845, 1861, and 1866 provided: 

"Ro person shall hold or exercise 

at the same time;more than one civil office of emolument, except that of Justice 

of the Peace." 

Section 30 of Article III of the Constitution 

of Texas of 1869 provided: 

'Ii0 judge of any court of law or equity, 

Secretary of State, Attorney General, clerk 

of any court of record, sheriff or collector, 

or any person 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 same time hold 

or exercise any two offices, 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 deemed lucrative; and that one person may 

hold two or more county offices, if so provided by the Legislature." 
Hon. R. L. Frasler, page 2 (V-1192) 

Section 40 of Article XVI of the Constitution 

of Texas of 1876, as amended, provides: 

‘Ro person shall hold or exercise, at 

the same time, 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 Guard Reserve. and 

the Officers Reserve Corps of the’Unlted 

States and enlisted men of the Rational 

Guard, the Rational Guard Reserve, and the 

Organized Reserves of the United States, 

and retired officers of the United States 

Army, Ravy, and Marine Corps, and retired 

warrant of fleers , and retired enlisted men 

of the United States Army, Ravy, and Marine 

Corps, unless othemrise specially provided 

herein. Provided, that nothing in this 

Constitution shall be construed to prohibit an officer or enlisted man of the 

Rational Guard, and the Rational Guard Reserve, or an officer in the Officers Reserve 

Corps of the United States, or an enlisted 

man in the Organized Reserves of the United 

States; or retired officers of the United 

States Army, Ravy, and Marine Corps, and 

retired warrant officers, and retired enlisted men of the United States Army, navy, 

and Marine Corps, from hold&g in conjunction with such office any other office or 

position of honor, trust or profit, under 

this State or the ~Unlted States, or from 

voting at ‘any Election; General, Special 

or Primary& in this State when otherwise 

qualified. (Emphasis added throughout.) 

The underlined portion constituted Section 40 

of Article XVI in 1876. The remaining portion was added 

by amendments adopted in 1926 and 1932. It Is noted that 

since 1845 the Constltutlons of Texas have prohibited the 

holding of two offices of emolument at the same time 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 40 of Article XVI insofar 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 common law 

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. Thomas v. Abernathy County Line 

A 1 . 

, % T::'l 45 

In the latter case the Supreme Court stated, at 

84 S.W.28 1007: 

'The text, 34 Tex. Jur. ,354, Sec. 19, 

summarizes the rule, thus: 'Having elected 

to accept and qualify for the second office, 

Ipso facto and as a matter 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 

are incompatible there Is a vacation --nlis o

first office regardless of whether both are 

ffi f emolument within the meaning 

the ~~k&tut,on. 

Of 

I n such 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 an annotation to this case, 100 A.L.R. at 

1164, the rule is stated as follows: 

"It is a well-settled rule of the common law that a person cannot at one and the 

same time 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 common law rule relative to the holding of 

two offices is sunrmarized in Attorney General's Opinion 

v-303 (1947) as follows: 

"At common law (adopted as the law of Texas 

in Article 1, R.C.S., when not inconsistent 

with our statutes or Constitution), 'there is 

no limit to the number of offices which may 

be held simultaneously by the same person, 
Hon. R. L. Prasier, page 4 (V-1192) 

provided that neither of them is incanpatible with any other; and this rule extends 

to offices of the highest grade, and which 

Involve, for their adequate performance, 

the greatest expenditure of time and labor.' 

Throop, Public Officers, pa 33. It is stated 

in Vol. 2~(Rev.) McQulllin on Municipal Corporations, at page 144, that, 'The same person may hold different offices which are not 

incompatible, unless forbidden by laws8 43 

Am. Jur. 153 recites that: 'In the absence 

of express or implied statutory provisions 

to the contrary, an officer who holds two 

or more separate and distinct offices, not 

Incompatible, Is entitled to the ccmpensation attached to each office.' And in 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 same time, provided there Is no Inconsistency in the 

functions of the two offices In question 

. . . The Inconsistency . . . does not 

consist in the 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 on Public Offices and Officers, 

p. 269, announces the rule to be thatr '. . . 

the mere physical Impossibility of one person's 

-a?forming the duties of the two offices as&om 

the lack of time or the Inability to bs in 

two places at the same moment, 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 same court, 

claimant and auditor, and the like.'" 

This principle of law is followed in practically every jurisdiction of this nation. See annotations in 

Note, 100 A..-$.R. 1162. 

It is apparent from the foregoing authorities 

that Section 40 of Article XVI of the Constitution was 

adopted as a limitation on the common law rule allowing 
. I 

Hon. R. L. Prasier, page 5 (V-1192) 

one person to hold at the same time two offices which 

are not Incompatible. See Bate, ,100 A.L.R. at 117C. 

Section 40 of Article XVI prohibits the holding ,of two 

offices of emolument at the same time by one person 

even though the duties of the two offices may be compatible. Certain offices are expressly exempt from its 

provisions, but as pointed out above, this exemption 

does not authorize the holding of two offices the duties 

of which me incompatible. Therefore, the remaining 

question to be determined is whether the duties of county commissioner and justice 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 and justice of the peace are inconpatible. See Thomas v. Abernathy County Line School 

Dist., supra; buckles v. Board of Education of Polk 

Count& 272 Ky. 431, 114 S.W.2d 511 (1936). 

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

56 Tex. Grim. 525, 121 S.W. 168 (1909), that a person might 

hold the offices of county. commissioner and road commlssioner at the same time. In that case, a statute made the county commissioners ex-officio road commissioners. The court 

held that the county commissioners were”charged by law with 

the duty, authority, and obligation of giving attention to 

all matters affecting public roads in their respective counties, and the duties imposed on the commissioners of Ellis 

County by this act come reasonably 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, 50 S.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.) 26 S.W.(2d) 196; 

City of Houston v. Stewart, 99 Tex. 67, 

S.W. 663; Powell v. Wilson, 16 Tex. 59." 

87 

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

For the reasons herein stated we affirm the holding In Attorney General's Opinions O-2640 (1940), V-838 

(lg&), and Attorney General's Opinion, Bk. 27, p. 207 (1913), 

and you are advised that the same person may not hold the of-_ 

;;", &dounty commlssloner and justice of the peace at the 

* 

SUMMARY 

The same person may not hold the offices of county commissioner and justice of 

the peace at the same time for the reason 

that the duties of the two offices are incompatible. Thomas v. Abernathy County 

LLne Ind. School Diet., 290 S W 152 (l! 

. * 27~ P ruitt v. Gl&'Rose 127' 

S~olPPDist. Noi 1 126 T 

1004 loo A L R. 1i58 (l&j; 

4 84 S W 26 

khAcl.e~ +. 

Boar& of Ed&&ion of Polk counts, 272 ICY. 

31, 114 sW2d 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, 

PRICE DANIEL 

Attorney General 

Bs 

e 

6lL%fJohn Reeves 

Assistant